What Any Decision Maker Needs to Know about Patent Protection

Richard Neifeld, Ph.D., Patent Attorney and Robert Crockett, P.E., Patent Attorney

I. Introduction

This paper explains the basic information a decision maker needs to know regarding patents. There are certain concepts the understanding of which is a prerequisite for this topic. Those concepts are provided in section II. Section III relates patents to countries. Sections IV and V explain the legal requirements for getting patents and how long patents last. Section VI discusses patent treaties. Section VII provides ballpark cost estimates for acquiring patents.

II. Prerequisite Definitions

The term “property right,” also called “ownership of property,” means the right to exclude others from using the property. Property was historically classified as either land or personal, personal property encompassing all property other than land.

The term “intangibles” means rights that are not land or tangible personal property. Intangibles include contractual rights, good will, and intellectual property.

The term “intellectual property” means property rights in certain intangibles, such as patents, trademarks, and copyrights.

Assignment means transfer of ownership of property. (For basic information on invention ownership issues, see http://www.neifeld.com/introart3.html.)

A patent is a property right that has the attributes of personal property. Those attributes include the ability to be bought sold (assigned), and licensed. Like all property, its exclusive right can be enforced. Enforcement of any property right includes the right to sue in a court for (1) damages and (2) an injunction to stop unauthorized use of the property.

There are different kinds of patents, including utility patents, design patents, plant patents, utility models, architectural design rights, and circuit architecture rights. This paper will describe only the most commercially important, which are utility patents.

Utility patents provide a property right to things having an industrial utility, including products, and processes of making and using products. Under current U.S. law, products include computers programmed to perform a useful function, including, for example, a business accounting function, and methods of using include computers running such programs. European law currently does not allow patents on accounting functions, also referred to as business method patents. On the issue of business method patents, Japan’s law is currently somewhere in between that of the U.S. and Europe.

The exclusive right is defined by the claims and the disclosure of a patent. What the claims cover is called subject matter. That is, claims define or delimit “subject matter” to which the patentee has an exclusive right.

Unauthorized use of an intellectual property right is called infringement. Remedies for infringement typically include damages (money equivalent to the harm caused to the owner of the patent by the past infringement) and injunctions (a court order forcing the infringer to stop his infringing activity).

A specification is a written description, often including figures, of subject matter sought to be patented, such as an invention. I try to limit the use of the word “invention” in this paper because it is in many senses mis-descriptive of what a patent can protect.

A filing date is the date that a national or international patent office recognizes its receipt of an application filed in that office.

Prior art means knowledge generally known by other than the patent applicants prior to when the applicants made their discovery or invention. This is a generally applicable definition in the sense that there are several exceptions and fine points that vary from country to country. One major exception is that almost all countries other than the U.S. define the date of discovery or invention claimed in the patent application as the filing date of the application, not an earlier date when work leading to the discovery or invention was done.

III. Who Grants a Patent and Where is Each Patent Enforceable

Generally speaking, patent rights are granted by nations. Each patent is only enforceable in the nation in which it is granted. There are some international treaties that extend the one patent per nation concept. Europe, for example, has one agency, the European Patent Office, that grants European patents. There are a few other such regional patenting authorities, one for the states of the former Soviet Union, and one for certain states in Africa.

Currently, there is no international patent. That is, there is no single patent granted by any patenting authority that is legally enforceable everywhere. However, a world patent has been discussed for decades, and international organizations are making incremental progress towards such an international patenting system. Don’t hold your breath, though. Most people in the patent business expect no international patent in the near future. Also, see below regarding international treaties that ease the burden of obtaining a patent on one invention in many countries.

IV. How Long Are Patents Enforceable

Generally speaking, patent are enforceable for twenty years from when the application for the patent is filed. There are of course exceptions and variations from country to country and application to application.

V. What are the Core Conditions for Obtaining a Patent on Anything

A. The Substantive Requirements for Obtaining a Patent

The core requirements worldwide for obtaining a utility patent are (1) that the thing is useful and (2) that the thing is novel. There is a third requirement, which is referred to as either the “inventive step” or the “non-obviousness” requirement, which generally means that the thing being patented would not have been readily apparent or immediately obvious to someone working in that technology field. The U.S. applies the non-obviousness standard. Europe applies the “inventive step” standard. (The U.S. has imposed an additional requirement, called the “best mode” requirement, but that is a technicality not relevant to the purpose of this paper.)

B. The Procedural Requirements for Obtaining a Patent

The process of obtaining a patent includes the steps of preparing and filing an application for the thing to be patented, prosecuting the patent to issuance, and paying applicable government fees. While this sounds simple, it definitely is not. The preparation of a quality disclosure for a patent application is essential to the government eventually granting the patent and the resulting patent being legally enforceable and therefore accorded respect by potential business competitors.

Generally speaking, the specification must include a sufficient description to enable one of ordinary skill in the art to which it pertains to make and use the claimed subject matter in order for the application to result in a patent. This is generally true in all countries that issue utility patents. In addition, in the U.S., the specification must also disclose the best mode that the inventor had in mind for making and using the invention at the time of filing of the application.

Failing any of the substantive or procedural requirements can fatally flaw the attempt to obtain a patent.

VI. Treaties that Facilitate Obtaining Patents in More than One Country on the Same Thing

There are currently two mechanisms to facilitate extending patent protection on something to more than one country. They are the Paris Convention and the Patent Cooperation treaty.

A. The Paris Convention

The Paris Convention’s core feature is that it allows the filing of a patent application in a second country that is a member of the Convention to be accorded the filing date of an earlier filed application filed in a first country. That allows a patent applicant to file the application in one country, and then to have copies of the filed application sent to agents in other countries for filing there. The Paris Convention has a time limit of one year (for utility patents). That is, the subsequently filed applications in the other countries must be filed within 1 year of the first filed application in the first country, to be accorded the earlier filing date. This right is incredibly important because, in most countries, public disclosure of the subject matter of a patent application prior to filing the application is an absolute bar to obtaining a patent for that subject matter. The Paris Convention allows the applicant to file a single patent application in one country, and then publicly disclose and sell products and processes disclosed in the application without automatically losing the right to a similar patent in the other countries that are members of the Paris Convention. Almost all countries of industrial/commercial significance are members of the Paris Convention. The Paris Convention has been in existence since about 1900 CE.

B. The Patent Cooperation Treaty

The Patent Cooperation Treaty goes one step beyond the Paris Convention. The Patent Cooperation Treaty allows a patent applicant to legally effect filing in every country that is member to the PCT by filing a single application, a PCT application, in any country that is a member of the PCT. The PCT application, however, will not issue into an international patent. Instead, if the applicant decides to obtain a patent in a country from the PCT application, the applicant must still file and pay for the “national stage proceeding” of the PCT application in that country. The benefits of filing a PCT application instead of national stage applications are (1) the PCT application allows for a minimum of 30 months to file “national stage” application during which time the applicant has no substantial patent related costs, (2) the PCT application reduces the formalities and costs required in filing applications in multiple countries, and (3) the PCT application process can provide an initial indication (prior to the 30 month period just noted) regarding the likelihood that the subject matter of the application is patentable so that the applicant can make an informed financial decision regarding cost/benefit of paying for the national stage proceedings in any country. Almost all industrially significant countries are members of the PCT. There are still some exceptions, like Thailand. The PCT has been in existence since the 1970’s and it has been tremendously effective, with tens of thousands of PCT applications now filed annually.

The PCT incorporates the Paris Convention. What this means is that a PCT application can claim Paris Convention priority to an earlier patent application. Therefore, a patent applicant can, for example, first file an application for a U.S. patent. Then, the applicant can file a PCT application which legally has the U.S. patent application’s priority date because of the Paris Convention. Then, the applicant can enter the PCT national stage in selected countries, for example, selecting the United States, China, Japan, Europe, and Korea for PCT national stage proceedings, and not selecting (and thereby abandoning patent protection in) all other countries.

C. Other Treaties Facilitating Obtaining National Patents

Europe has the European Patent Convention. The former Soviet Union has the Eurasian Patent Convention. Some African national have the OAPI treaty.

The EPC allows a single application to issue into a single European patent. However, generally speaking, that European patent is currently not enforceable in any European country unless the granted patent has been translated and filed in the country’s national patent office within 3 months of the date of grant of the European patent. Hence, the substantial translation and national agent costs, and annuities costs, also exist for European countries. The other two treaties are currently of negligible importance.

VII. Costs and Cost/Benefit

No one can file a patent for an invention in all countries of the world. Anyone that thinks they can is fooling themself. Consider the following rough outline of costs. These costs estimates are ball park, and generally independent of country.

Initially, there is the cost of any determination whether to file a patent application (internal corporate patent committee review, patent prior art search and evaluation). Next, there is the cost of drafting a patent specification, claims, and figures. That currently ranges for typically patent applications from three to twenty thousand dollars, depending upon the importance of the invention, technological complication, budget, etc. Most of that cost is the cost of drafting the specification and claims, typical a few tens of hours of attorney time. There is the government cost of filing the application, which typically ranges between one and three thousand dollars. That is the cost to file a first application.

Consider now the cost to file Paris Convention or PCT national stage equivalents. This cost includes the foreign agent’s docketing and filing charges, typically one to two thousand dollars, and the foreign government’s filing fees, typically one to two thousand dollars. That is per country. If, however, the target country does not accept filings in the language in which the specification was originally drafted, then include the cost of a professional translator skilled in patent translations. That ranges from 0.20 to 0.40 cents per word. For a 50 page specification having 300 words per page at one and one half line spacing (15,000 words total), that will cost three to six thousand dollars. If you have a 100 page specification, double that value. If you have a 200 page specification, triple that value.

You have now considered the cost to get the application on file. Add to that the cost of complying with each government patent office’s formalities requirements, and responding to each government patent office’s examiner’s review and rejections or requirements, including both the foreign agent’s fees and the national agent’s fees.

Now add in each government’s charges for granting the application, the foreign agent’s charges for paying for the grant, typically about two thousand dollars, the costs for your national agent to handle those transactions, and then the foreign government annuities, the costs for the foreign agent to track and pay those fees, and the cost for your national agent to track report to you, and pass along your instructions. The foreign government annuities vary from country to country, the determination of the date on which they are due varies from country to country, and the fees typically increase from about one hundred dollars the first year to over a thousand dollars near the end of the 20 year patent term. The foreign agent’s fees depend upon the magnitude of the government fees but are never less than about one hundred dollars.

All of the foregoing assumes that no one challenges your patent application via an opposition proceeding or the like. Any proceeding involving more than just the patent application and the government will increase by tenfold the costs for that country, and impact the costs in the other countries as well.

Thus, to file for, obtain, and maintain a patent for something in all countries of the world would cost millions of dollars. Given those constraints, any patent applicant must make cost/benefit analyses to determine in whether and in which countries to seek patents. Moreover, the cost benefit analysis and timing of incurring costs in the patenting process are substantially influenced by the procedures (national, Paris, PCT, and EPC filings) used to obtain patent protection.

VIII. Further Information

This article has discussed some of the basics of patent law that every decision maker needs to know. Additional articles and resources on patent law and intellectual property can be found at www.neifeld.com.

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Here is San Bernardino Business Attorney Sebastian Gibson’s Top Ten:

1. It’s not mavericky enough.

2. It’s relocating to Alaska.

3. The FBI just raided it.

4. It’s bankrupt.

5. There won’t be any bonuses this year.

6. There is going to be a new wave of layoffs.

7. The boss is blaming you for the decrease in profits.

8. There are no profits.

9. There is no business.

10. They’ve taken your name off the directory.

Now here is everything (well, almost everything) you need in business about personal injury, car accidents, brain damage, wrongful deaths, business, real estate, landlord-tenant, homeowners association law, construction, patents, trademarks, corporations, entertainment law, advertising, copyrights, food and wine, hotel and restaurant law, and litigation without making any serious legal missteps.  

If you need to know more about business, environmental, international law, election and campaign law, consumer law, class actions, constitutional, internet, publicity and privacy rights, publishing, advertising, media, employment law, estate planning, wills, trusts, water law, agricultural, insurance law, bad faith, psychologist and psychotherapist defense, education law or child accidents, you can find valuable information by searching for those subjects and adding the words San Bernardino business lawyer or San Bernardino business attorney to your search terms and looking for other articles by Sebastian Gibson.

You can also learn more about any of these business areas of law and how we can assist you as San Bernardino business attorneys, or as lawyers in any city, by calling the Law Offices of R. Sebastian Gibson at any of the numbers which can be found on our website at http://www.SebastianGibsonLaw.com  .

1. Personal Injury, Car Accidents, Drowning Accidents, Brain Damage, Catastrophic Injuries and Wrongful Deaths in San Bernardino – If you’ve had a San Bernardino auto, motorcycle, truck, pedestrian, bicycle, bus, train, airplane or car accident of any kind, get the other driver’s information, take camera or cell phone pictures, call the police, get a report, seek medical treatment immediately, call us or another good San Bernardino personal injury lawyer, follow up with more medical treatment if you are still hurt, report the accident to your insurance agent, file a report with the DMV and don’t talk to anyone else or give a recorded statement until you talk with us. If you’ve lost a loved on in an accident, call us or another good San Bernardino personal injury lawyer immediately. If you’ve been bitten by a dog, get treatment, call animal control and then call us. If you or someone you know has come close to drowning, seek medical treatment immediately as death or serious injury can still occur hours later.

2. San Bernardino Business – Put everything in writing and preferably with our help or the help of another good San Bernardino business lawyer. Spend money only as you need to. A San Bernardino business attorney can tell you where to save costs and how to do it without risking liability. Limit your promises to employees and to customers. Buy insurance. Protect your intellectual property at the outset. Don’t disclose your inventions or any trade secrets to anyone without a non-disclosure agreement. Incorporate as soon as you are profitable. Get legal advice for problems or indications of pending lawsuits immediately. Keep all costs, including labor costs, to the bare minimum. Always use confidentiality agreements when disclosing valuable information and be careful what information you agree to receive. Tell customers they must pay in advance or on delivery. Do not agree to bill and be paid at a date after delivery. Otherwise you won’t be paid on a percentage of your products. Be wary of the potential for fraud by customers, business partners and employees.

3. Residential and Commercial Real Estate, Landlord Tenant Law, Mortgage Law and Homeowners Association Law in San Bernardino – Use a San Bernardino real estate lawyer who is also a Realtor, or a Realtor who is also a San Bernardino real estate attorney. Don’t buy or lease more than you need. Choose the right location. Choose the right mortgage. Don’t refinance if you think you may need to walk away from a home. Don’t buy more than you can afford. Check out the neighborhood carefully. Get a home inspection and a home warranty. Have a San Bernardino real estate lawyer look over the documents. Homeowner Associations are facing a host of problems stemming from the number of foreclosures. As fees are reduced by vacant homes and condos, projects must be trimmed back or delayed in order to save money. Some homeowner associations, who were already in trouble, may face additional problems in the future and both homeowners and their associations should consult with legal counsel to help resolve how to deal with such issues.

4. Construction in San Bernardino – With the construction industry in it’s biggest ever slump, down more than 90% from its peak in many areas, San Bernardino contractors need to shift their focus to energy free homes, apartment construction and to take advantage of contracts likely to be offered for bid under the new administration’s plan to create new jobs rebuilding the country’s infrastructure, construction of roads, bridges, the electrical grid and other utility projects. If you are dealing with contractors yourself, always use licensed contractors and have a San Bernardino construction lawyer look over your contracts. You can also investigate the contractor online to ensure he is licensed and insured and a San Bernardino construction attorney can do an additional investigation at little extra cost. Never pay a contractor the entire sum for a project at the start. Put all agreements in writing, including any changes.

5. San Bernardino Patents and Biotechnology – A patent should be applied for, for any new, and non-obvious process, or invention and to any new improvement of an invention at first opportunity. A patent is good for 20 years. Depending upon the complexity, most utility patent applications will cost between ,000 and ,000.00. A design patent can be applied for by a San Bernardino patent attorney, for the look of an item and is good for 14 years. A provisional patent can be applied for, good for one year at a cost of half of the usual utility patent cost but is only good for one year. If the inventor does not upgrade the provisional patent into a utility patent application within that period, usually for the cost of the remainder of the corresponding cost of a utility patent, the inventor loses his or her protection. A patent is pending once it has been applied for, and can be licensed, or sold outright. Without a patent, others can make and sell your invention with no compensation to you. Patent searches help the San Bernardino patent lawyer write an application around existing patents and cost an additional sum, usually under ,000.00. Drawings must also be prepared for the patent application usually for under 0.00. A design patent can be sought for between ,000 to ,500 and a European design patent for between ,000 to ,500. Accelerated patent applications usually cost an additional 50% of normal patent applications. Foreign patent applications also require additional fees.

6. San Bernardino Trademarks – Trademark any original logos, designs, words, phrases, symbols or combinations that you use to identify your products or services as soon as possible. Call a San Bernardino trademark attorney as soon as anyone else’s trademark or service mark is so similar as to cause a likelihood of confusion in the public or if you receive a cease and desist letter from someone else accusing you of infringement. Trademark applications range from between ,500 if there has not yet been any use of the trademark to ,500 to apply for a trademark already in use. Therefore, to save money, create some products and advertising materials and apply for the trademark once they are ready to be sold and advertised.

7. San Bernardino Corporations – Never incorporate by yourself. Corporations will not protect you from liability if you do not follow corporate formalities correctly. Protect your intellectual property from the start with the help of a San Bernardino corporations attorney. Don’t borrow someone else’s employee handbook or fire problematic employees without legal advice. Don’t get investors without seeing one of our San Bernardino corporate attorneys. Cut costs to the bone. Use extra money to advertise, and sell in new markets. A San Bernardino corporations lawyer can provide you with advice as to which type of corporation or LLC to use for your business.

8. Entertainment Law, Sports Law, Marketing, Advertising, Media and Copyrights in San Bernardino – Whether you are a musician, an actor, a model, a writer, an athlete, a broadcaster or connected in any other way to the entertainment industry, contact us or another good San Bernardino entertainment attorney as soon as anyone gives you a contract to sign. Signing a bad contract can end your career before it’s ever begun. As soon as you have written any body of work, have it copyrighted. You can do this quite easily yourself, but if you need assistance or if someone else infringes your copyrighted work, you can then file suit against such a party.

9. San Bernardino Litigation – At the first sign that someone may sue you or your business, consult with a San Bernardino litigation attorney. Many times, a lawsuit can be forestalled before it has been filed or the matter resolved with letters between the litigation attorneys. If you are served with a lawsuit, hire a San Bernardino litigation lawyer like one from our firm who specializes in mediations and non-binding arbitrations so your litigation can be resolved at the soonest possible opportunity and limit your exposure to years of lawyer’s fees and costs as your case winds slowly through the courts.

10. Food and Wine Law, Hotel and Restaurant Law in San Bernardino – Today, hotels, restaurants, nightclubs, bars and grocery stores face an ever increasing host of new regulations they never faced previously. From the usual licensing problems they face with the Department of Alcoholic Beverage Control for adherence to and violations of ABC rules, to new state regulations involving menus and calorie counts in fast food restaurants and new rules requiring groceries to show the country of origin in labels on most of their produce and meat. The worst case scenario today for an establishment serving alcohol, is to serve a minor alcohol who later dies in an auto accident. Such an establishment will need legal representation by a San Bernardino food, alcohol and restaurant lawyer before the ABC as well as legal defense of civil lawsuits filed against it.

If you have a legal matter in San Bernardino, Ontario, Rancho Cucamonga, Temecula, Murrieta, Riverside, Moreno Valley, Fontana, Rialto, San Bernardino County, Redlands, Hemet, Perris, Colton, Highland, Yucaipa, Banning, Riverside County, Big Bear, Lake Arrowhead, or anywhere in the Inland Empire, our San Bernardino law firm has the knowledge and resources to be your San Bernardino Lawyers and your San Bernardino Attorneys. Be sure to hire a Coachella Valley law firm with experience in Personal Injury, Car Accidents, Drownings, Brain Damage, Catastrophic Injuries, Wrongful Death, Business, Real Estate and Landlord Tenant Law, Homeowner Association Law, Construction, Trademarks, Patents, Corporations, Entertainment, Sports Law, Marketing, Advertising, Media, and Copyright Law, and who will endeavor to ensure that your rights are properly represented.

Additionally, if you have a legal matter which involves Environmental and Toxic Tort Law, Litigation, International, Shipping and Maritime Law, Employment, Election and Campaign Finance Law, Consumer Law and Class Actions, Constitutional, Publishing, Publicity, Privacy Rights, Internet Law, Advertising and Media Law, Food and Wine Law, Hotel and Restaurant Law, Estate Planning, Wills and Trusts, Water, Agricultural and Natural Resource Law, Insurance Law, Bad Faith and Psychiatrist and Psychotherapist Defense, Education Law or a Child Accident in San Bernardino or anywhere in Southern California, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com  and learn how a San Bernardino attorney from our offices can assist you.

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A trademark is much more than just a name, symbol or logo. In fact, it is a distinctive sign via which an individual, company or organization is identified and recognized in the marketplace. A good and unique trademark adds to a brand’s value making your brand stand apart from your competitors. Customers instantly recognize a good trademark and relate to it instantly in accordance to things such as quality, brand, service and its benefits. Some examples of well-known Trademarks are: Coca-Cola, Rolls-Royce, The Apple logo and the Nike “swoosh”.

Plus, trademarks provide their owners with the legal right to use it for their own business and purpose. It means others don’t have the right to use a confusingly similar mark. And in case a similar trademark is used by others, it can be termed illegal. Well, this never means that others cannot deal in with the same goods or products under a different trademark.

Why to go for a trademark registration?

Sensible and good business people register a trademark related to their company and organization with Patent Offices. This is done in order to gain an official record of their rights to a particular mark. A Trademark registration grants you a statutory right which is subject to certain conditions. After trademark registration others cannot use it in any form without the registered owner’s permission. This helps in the prevention of infringement to a great extent.

One of the main motives of a business is to build up the distinct name for its brand in the market. And by applying for and gaining a Registered Trademark can help a lot in fulfilling this dream. With trademark registration, one can defend the position of its business in the market. However, you need to properly promote your trademark and it should be protected too as it is a valuable asset for any business. In some cases trademark can have more worth as compared to the bricks and mortar of a business.

How much important is a Trademark?

In this highly competitive world, business visibility adds to a company profile. And trademark helps in enhancing this visibility aspect. For instance take the case Coca-Cola. Be it any part of the work, this brand is immediately recognizable. It is an icon for capitalism and private enterprise and a great piece of intellectual property in the world today. It is the trademark of Coco-Cola that has played an important role in this success story.

Always bear in mind that selecting or creating an appropriate trademark is a critical step. This will play an important element in the marketing strategy of your business. It is always to do a good research before selecting a certain logo or mark. Once you have decided the trademark, you must file your trademark with the U.S. Patent and Trademark Office (PTO) to obtain the highest levels of protection. This is like filing a notice to other businesses that you are using the mark and others can’t use them without your notice.

Always choose the best trademark and it must look different and unique from the trademarks used by your competitors. Go for a free trademark search online to find out a professional firm that can help you in avoiding the consequences of infringing on an existing trademark and get the best trademark for your company.

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Here is Temecula Business Attorney Sebastian Gibson’s Top Ten:

1.What’s wrong with a bridge to nowhere?

2. What’s this internet thing everyone is talking about?

3. How can you communicate with a piece of fruit, even if it is a blackberry?

4. How do you get your cell phone to stop ringing in the middle of important mavericky business meetings?

5. What’s wrong with showing how turkeys are slaughtered while you’re being interviewed?

6. Why doesn’t everyone shop at Neiman Marcus and Saks Fifth Avenue?

7. How come there are so few businesses and so much fewer people in Alaska than in those other states or countries or whatever they were that I visited on the campaign trail?

8. Just where the heck is Afghanistan and do you think they’d be interested in some Eskimo souvenirs?

9. If you want to make it in business, don’t you have to go rogue on your own company?

10. Why would anyone want to be a plumber and deal with clogged up toilets all day?

Now here is everything (well, almost everything) you need in business about personal injury, car accidents, brain damage, wrongful deaths, business, real estate, landlord-tenant, homeowners association law, construction, patents, trademarks, corporations, entertainment law, advertising, copyrights, food and wine, hotel and restaurant law, and litigation without making any serious legal missteps.  

If you need to know more about business environmental, international law, election and campaign law, consumer law, class actions, constitutional, internet, publicity and privacy rights, publishing, advertising, media, employment law, estate planning, wills, trusts, water law, agricultural, insurance law, bad faith, psychologist and psychotherapist defense, education law or child accidents, you can find valuable information by searching for those subjects and adding the words Temecula business lawyer or Temecula business attorney to your search terms and looking for other articles by Sebastian Gibson.

You can also learn more about any of these business areas of law and how we can assist you as Temecula business attorneys, or as lawyers in any city, by calling the Law Offices of R. Sebastian Gibson at any of the numbers which can be found on our website at http://www.SebastianGibsonLaw.com  .

1. Personal Injury, Car Accidents, Drowning Accidents, Brain Damage, Catastrophic Injuries and Wrongful Deaths in Temecula – If you’ve had a Temecula auto, motorcycle, truck, pedestrian, bicycle, bus, train, airplane or car accident of any kind, get the other driver’s information, take camera or cell phone pictures, call the police, get a report, seek medical treatment immediately, call us or another good Temecula personal injury lawyer, follow up with more medical treatment if you are still hurt, report the accident to your insurance agent, file a report with the DMV and don’t talk to anyone else or give a recorded statement until you talk with us. If you’ve lost a loved on in an accident, call us or another good Temecula personal injury lawyer immediately. If you’ve been bitten by a dog, get treatment, call animal control and then call us. If you or someone you know has come close to drowning, seek medical treatment immediately as death or serious injury can still occur hours later.

2. Temecula Business – Put everything in writing and preferably with our help or the help of another good Temecula business lawyer. Spend money only as you need to. A Temecula business attorney can tell you where to save costs and how to do it without risking liability. Limit your promises to employees and to customers. Buy insurance. Protect your intellectual property at the outset. Don’t disclose your inventions or any trade secrets to anyone without a non-disclosure agreement. Incorporate as soon as you are profitable. Get legal advice for problems or indications of pending lawsuits immediately. Keep all costs, including labor costs, to the bare minimum. Always use confidentiality agreements when disclosing valuable information and be careful what information you agree to receive. Tell customers they must pay in advance or on delivery. Do not agree to bill and be paid at a date after delivery. Otherwise you won’t be paid on a percentage of your products. Be wary of the potential for fraud by customers, business partners and employees.

3. Residential and Commercial Real Estate, Landlord Tenant Law, Mortgage Law and Homeowners Association Law in Temecula – Use a Temecula real estate lawyer who is also a Realtor, or a Realtor who is also a Temecula real estate attorney. Don’t buy or lease more than you need. Choose the right location. Choose the right mortgage. Don’t refinance if you think you may need to walk away from a home. Don’t buy more than you can afford. Check out the neighborhood carefully. Get a home inspection and a home warranty. Have a Temecula real estate lawyer look over the documents. Homeowner Associations are facing a host of problems stemming from the number of foreclosures. As fees are reduced by vacant homes and condos, projects must be trimmed back or delayed in order to save money. Some homeowner associations, who were already in trouble, may face additional problems in the future and both homeowners and their associations should consult with legal counsel to help resolve how to deal with such issues.

4. Construction in Temecula – With the construction industry in it’s biggest ever slump, down more than 90% from its peak in many areas, Temecula contractors need to shift their focus to energy free homes, apartment construction and to take advantage of contracts likely to be offered for bid under the new administration’s plan to create new jobs rebuilding the country’s infrastructure, construction of roads, bridges, the electrical grid and other utility projects. If you are dealing with contractors yourself, always use licensed contractors and have a Temecula construction lawyer look over your contracts. You can also investigate the contractor online to ensure he is licensed and insured and a Temecula construction attorney can do an additional investigation at little extra cost. Never pay a contractor the entire sum for a project at the start. Put all agreements in writing, including any changes.

5. Temecula Patents and Biotechnology – A patent should be applied for, for any new, and non-obvious process, or invention and to any new improvement of an invention at first opportunity. A patent is good for 20 years. Depending upon the complexity, most utility patent applications will cost between ,000 and ,000.00. A design patent can be applied for by a Temecula patent attorney, for the look of an item and is good for 14 years. A provisional patent can be applied for, good for one year at a cost of half of the usual utility patent cost but is only good for one year. If the inventor does not upgrade the provisional patent into a utility patent application within that period, usually for the cost of the remainder of the corresponding cost of a utility patent, the inventor loses his or her protection. A patent is pending once it has been applied for, and can be licensed, or sold outright. Without a patent, others can make and sell your invention with no compensation to you. Patent searches help the Temecula patent lawyer write an application around existing patents and cost an additional sum, usually under ,000.00. Drawings must also be prepared for the patent application usually for under 0.00. A design patent can be sought for between ,000 to ,500 and a European design patent for between ,000 to ,500. Accelerated patent applications usually cost an additional 50% of normal patent applications. Foreign patent applications also require additional fees.

6. Temecula Trademarks – Trademark any original logos, designs, words, phrases, symbols or combinations that you use to identify your products or services as soon as possible. Call a Temecula trademark attorney as soon as anyone else’s trademark or service mark is so similar as to cause a likelihood of confusion in the public or if you receive a cease and desist letter from someone else accusing you of infringement. Trademark applications range from between ,500 if there has not yet been any use of the trademark to ,500 to apply for a trademark already in use. Therefore, to save money, create some products and advertising materials and apply for the trademark once they are ready to be sold and advertised.

7. Temecula Corporations – Never incorporate by yourself. Corporations will not protect you from liability if you do not follow corporate formalities correctly. Protect your intellectual property from the start with the help of a Temecula corporations attorney. Don’t borrow someone else’s employee handbook or fire problematic employees without legal advice. Don’t get investors without seeing one of our Temecula corporate attorneys. Cut costs to the bone. Use extra money to advertise, and sell in new markets. A Temecula corporations lawyer can provide you with advice as to which type of corporation or LLC to use for your business.

8. Entertainment Law, Sports Law, Marketing, Advertising, Media and Copyrights in Temecula – Whether you are a musician, an actor, a model, a writer, an athlete, a broadcaster or connected in any other way to the entertainment industry, contact us or another good Temecula entertainment attorney as soon as anyone gives you a contract to sign. Signing a bad contract can end your career before it’s ever begun. As soon as you have written any body of work, have it copyrighted. You can do this quite easily yourself, but if you need assistance or if someone else infringes your copyrighted work, you can then file suit against such a party.

9. Temecula Litigation – At the first sign that someone may sue you or your business, consult with a Temecula litigation attorney. Many times, a lawsuit can be forestalled before it has been filed or the matter resolved with letters between the litigation attorneys. If you are served with a lawsuit, hire a Temecula litigation lawyer like one from our firm who specializes in mediations and non-binding arbitrations so your litigation can be resolved at the soonest possible opportunity and limit your exposure to years of lawyer’s fees and costs as your case winds slowly through the courts.

10. Food and Wine Law, Hotel and Restaurant Law in Temecula – Today, hotels, restaurants, nightclubs, bars and grocery stores face an ever increasing host of new regulations they never faced previously. From the usual licensing problems they face with the Department of Alcoholic Beverage Control for adherence to and violations of ABC rules, to new state regulations involving menus and calorie counts in fast food restaurants and new rules requiring groceries to show the country of origin in labels on most of their produce and meat. The worst case scenario today for an establishment serving alcohol, is to serve a minor alcohol who later dies in an auto accident. Such an establishment will need legal representation by a Temecula food, alcohol and restaurant lawyer before the ABC as well as legal defense of civil lawsuits filed against it.

If you have a legal matter in Temecula, Ontario, Rancho Cucamonga, Murrieta, Riverside, San Bernardino, Moreno Valley, Fontana, Rialto, San Bernardino County, Redlands, Hemet, Perris, Colton, Highland, Yucaipa, Banning, Riverside County, Big Bear, Lake Arrowhead, or anywhere in the Inland Empire, our Temecula law firm has the knowledge and resources to be your Temecula Lawyers and your Temecula Attorneys. Be sure to hire a Coachella Valley law firm with experience in Personal Injury, Car Accidents, Drownings, Brain Damage, Catastrophic Injuries, Wrongful Death, Business, Real Estate and Landlord Tenant Law, Homeowner Association Law, Construction, Trademarks, Patents, Corporations, Entertainment, Sports Law, Marketing, Advertising, Media, and Copyright Law, and who will endeavor to ensure that your rights are properly represented.

Additionally, if you have a legal matter which involves Environmental and Toxic Tort Law, Litigation, International, Shipping and Maritime Law, Employment, Election and Campaign Finance Law, Consumer Law and Class Actions, Constitutional, Publishing, Publicity, Privacy Rights, Internet Law, Advertising and Media Law, Food and Wine Law, Hotel and Restaurant Law, Estate Planning, Wills and Trusts, Water, Agricultural and Natural Resource Law, Insurance Law, Bad Faith and Psychiatrist and Psychotherapist Defense, Education Law or a Child Accident in Temecula or anywhere in Southern California, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com  and learn how a Temecula attorney from our offices can assist you.

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A trademark is one of the most important things any company can own, and yet many people with new businesses know next to nothing about them.

Here’s what I’ve learned for my part, some of it painfully, but thankfully not fatally.

Trademarks are for phrases, names, and logos. The most important thing to trademark is usually your company name. If you haven’t already, do it immediately, it only costs a few hundred dollars to do it yourself. You can check to see if there are likely conflicts by searching the Patent and Trademark Office’s website at: www.uspto.gov.  An an entrepreneur, this is a site you’re going to get to know quite well over time, believe me.

File the trademark for your company name alone. If you have a great logo, you can file for that too – but if you wind up changing your logo, then it’s no good anymore, which is why I always file for the name itself without a particular logo.

Also file of course on your tag line if it’s good and important, and major product names that you have. Several hundred dollars now can save you millions or bankruptcy later.

I like to do trademark filings myself and save on the legal fees, but I’ve been at this for a while.

TM vs. ®

Most people don’t know exactly what TM and ® signify.  TM simply means that you claim rights in the mark. You don’t have to file with the Trademark Office to use TM. If and when your mark is officially registered with the Trademark Office, you can then use the federal registration symbol – ®. There’s no reason to not start using TM immediately without having filed anything or researched availability. Many people think TM means you have the mark, so it makes you look good to them, and to those who do know the difference, it still looks like you know what you’re doing.

Here’s the Trademark Office’s FAQ:

www.uspto.gov/web/offices/tac/tmfaq.htm

My Close Call

I have a product called EZ Numbers. I got the domain name back in 2005, and didn’t file for the trademark since I didn’t think anyone else would. Last year I finally got around to it. My application was rejected in an “Office Action.” Ouch!  The examiner cited the likelihood of confusion with another mark “Easy Number,” which had been filed after I got my domain name. Doh!

At this point, I had three choices:

1. Appeal the rejection.
2. Abandon the trademark and continue selling without it.
3. Change the name and try again with a new filing.

Changing the name would mean coming up with a new name, domain name, logo, new artwork in the application, etc. etc.  I’d also lose the brand awareness I’d built up, and then for Google I’d lose the four years of history. Because Google relies in part on how old your site is, the newer the site the less likely you are to be found by someone doing a search related to your site. Plus I’m just too ornery to change the name, so this option was out.

I could forget the trademark and just keep using the name EZ Numbers, and hope nobody came after me. But what if a couple years from now, I got a letter from some lawyer stating that I had willfully infringed on their client’s trademark? I couldn’t plead ignorance since I’d filed and been rejected. This could easily drive me out of business.

I figured I had no choice but to appeal the rejection. I found a great consultant, who although not a lawyer, knows trademarks in and out. He had his own horror story from which he learned everything you could possibly know about trademarks. I hired him, and over a couple of months (you have six months to appeal) we worked together on the response.

I felt pretty good when I submitted the response. I submitted the appeal on a Tuesday, and on Wednesday morning the examiner called to say that if I’d accept a slight change in the description of the mark, one I had proposed in my appeal hoping that she would ok it. I was ecstatic! She had previously mentioned to me “multiple grounds for refusal” so I was surprised to get it overturned overnight.

I wasn’t out of the woods just yet, though. My trademark was now “Approved for Publication.” This meant that three weeks from now, the potential mark would be published for opposition in the Official Gazette. Then anyone who felt that the mark would infringe on an existing one would have thirty days to either oppose it or ask for an extension of time to oppose it.

If someone does oppose your mark, it’s basically a federal law suit in which you are the defendant, and this is the big leagues. You’re in it for tens of thousands of dollars at the very least, and easily millions.

Oppositions aren’t all that rare, so every day during the thirty day opposition window I checked my mail and uspto.gov to see if I had been opposed. Thankfully I wasn’t, and now EZ Numbers has ® following it. However, trademarks aren’t forever. Just like anyone can sue anyone anytime, your registered mark can still be challenged, but you’re far better off with a mark that’s registered.

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With the .COM inventory nearly exhausted, .CO domains will be a perfectly positioned alternative domain extension. Recognized universally as the abbreviation for “company”, .CO is the ideal domain to extend a company’s brand’s reach and expand its web presence.

However, there is a downside to the upcoming release of the .CO domains, a potential for typo-squaters – those who register domain names that are one letter off of famous or registered trademarks – to divert Internet traffic away from the trademark holders.

Here’s what you need to know about the release and registration process should you wish to extend your domain name holdings and preclude a typo-squater from diverting traffic away from your Internet presence.

April 1st – Local Sunrise Period for Colombian Trademarks Opens

The Local Sunrise gives holders of Colombian trademarks first priority before the Global Sunrise Period opens to all other trademark holders. Only those that hold a Colombian trademark may apply for registrations during the Local Sunrise Period. All applications will be validated, and in the event there are multiple valid applications for the same string, an auction will be conducted to determine which applicant is awarded the domain.

To apply under the Local Sunrise Period Colombian Trademarks must be registered on or before July 30, 2008.

April 26th – Global Sunrise Period Opens

The Global Sunrise Period allows all trademark holders to submit applications for the .CO domain names corresponding with their trademarks before the registration of .CO domain names are open to the public. In the event there are multiple valid applications for the same string, an auction will be conducted to determine which applicant is awarded the domain.

To apply under the Global Sunrise Period Trademarks must be registered in any country on or before July 30, 2008.

June 21st – Back Ordering Period Opens

The Back Ordering Period allows anyone to back order the .CO domain they want before the .CO Registry opens to the general public. All matching applications will be resolved at auction.

July 20th – General Availability

General Availability will open to everyone on a first-come, first-serve basis.

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1.  Your Trademark Does Not Need to Be Registered to Be Enforced.

As you are probably aware, a trademark includes any word, name, symbol, or device used in commerce to identify 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 such as Coca-Cola® for beverages, the Nike swoosh for shoes, and FedEx® for package delivery services.

What you may not be aware of is that you do not have to own a federally registered trademark to enforce your rights in a trademark (i.e., stop someone else from infringing or knocking off your mark with a similar or identical mark).

Trademarks can be federally registered and the federal registrations are well worth the time and effort to acquire.  But trademarks also exist at what is known as common law.  In short, if you are using a trademark to identify your goods or services, even if you have never registered the same, you have acquired rights in that mark back to the date that you first used the mark selling the goods or services.

2.  You Need to Have Used Your Trademark First.

Probably the most important issue in trademark enforcement is to figure out who used their respective trademark first.  The general rule is that whoever used their mark first has what is known as Priority of Use.  The person who used it second has Inferior Use.   Accordingly, the party with the Priority of Use can enforce their mark against the party with Inferior Use (e.g., make them stop using the infringing mark).  With every rule there are exceptions.  But this general rule is a good guiding point if you are thinking about enforcing your mark.

3.  The Trademarks Need to Be Similar.

When you look at your mark and the other mark do you feel that they are very similar?  The general rule is that if the marks are similar in appearance, spelling, phonetic pronunciation, or simply present a similar overall commercial impression enforcement may be had.  So unless the marks are identical, this is generally a subjective sliding scale.

4.  The Goods and/or Services Need to be Similar or Related.

Also, to enforce your mark against another the goods and/or services need to generally be similar enough that the average consumer encountering the respective trademarks would think that they originate from the same source.  To put it another way, few would argue that if we started seeing frozen hamburger patties in our grocery store with the brand “McDonalds” on them we would think those nice people from Illinois are now making frozen food as well.  Although they have never delved into the frozen food market, there is a strong enough association between the two that the assumption would be logical.

In the alternative, let’s say you are in your local car parts store and see head gaskets with the brand name GATORADE on them.  Few of us would think that the drink manufacturer has expanded into the machine parts arena. Why? It’s just not a typical expansion you see in the marketplace.  So like the subjective rule of reason we talked about with the similarity of the marks, this is also a subjective exercise.

5.  Is Enforcement a Good Business Decision?

This is one that attorneys don’t often speak about with their clients but we like to bring up – Does enforcement of the mark make good business sense? Yes you are angry someone is knocking off your mark.  Sure it is nearly identical to yours.  But does a single mom and pop store opening in California affect your bottom line in the New York / New Jersey area where you distribute your products?

We look at it like this.  At the end of the day when you are deciding to enforce your mark you need to make a BUSINESS DECISION as to whether enforcement makes sense.  If it is going to cost you a gazillion dollars to stop a mom-n-pop store in California that is not affecting your sales whatsoever is that a good business decision?  On the flip side, if you are an Internet retailer and your competitor is stealing from you every day by using a copy of your trademark you need to act immediately.

For every situation there is a different answer.  It is a factual analysis the business owner must make.

So the answer depends upon you and your business.  There are, of course, other considerations to include such as the dilution of your mark which occurs when you do not enforce the same or setting up a defense of acquiescence (i.e., if you let people use similar marks others can later claim this as a defense that they too should now be permitted to use a similar mark to yours).

But at the end of the day we like to remind those that we advise that this is business, nothing personal.  And if it does not make business sense to enforce your mark do not.  If it does, do.  But always keep an eye on the bottom line.

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We are often approached by trademark owners concerned that their competition has registered a domain name that is similar to their trademark and is using the same to divert customers away from their own businesses.  Here is what you need to know about the relationship between trademarks and domain names and what you can do to protect your trademarks from being used against you in competing domain names.

Registration of a Domain name is Not Trademark Use

As you are probably aware trademark rights generally attach to a trademark upon use of the mark in commerce.  Although there are other ways to reserve rights in a mark before it is in use, using the mark is generally a pre-requisite to securing rights therein.

Many people believe that the registration of a domain name in and of itself creates trademark rights.  Simply put, it does not.  Look at a domain name like a phone number.  It is merely an address on the world wide web where a web site may be located.  So the address by itself is just that – an address.  It is not a trademark.

Of note, this is not to say that domain name cannot become a trademark.  Amazon.com has one of the web’s most recognized trademarks.  But it is the name promoted on the pages of the web site Amazon.com which gives the owner trademark rights and not the URL amazon.com.

Cybersquatting

Although the registration of a domain name does not constitute trademark use per se, owning a valid trademark can preclude the subsequent registration of domain names that include or are similar to your trademarks.

There are two primary statutes or rules trademark holders can use to enforce their trademark rights against the subsequent registration of like domain names: (1) the Uniform Domain-Name Dispute-Resolution Policy (UDRP); and (2) the Anticybersquatting Consumer Protection Act (ACPA).

Both systems generally have the same requirements.  A complainant in a UDRP or ACPA proceeding generally must establish three elements to succeed:

1.  The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights at the time the disputed domain name is registered;

2.  The registrant does not have any rights or legitimate interests in the domain name; and

3.  The registrant registered the domain name and is using it in “bad faith.”

In regard to bad faith, considerations of whether the domain name was registered in bad faith include, but are not limited to:

a.  the registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;

b.  the registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;

c.  the registrant’s providing misleading false contact information when applying for registration of the domain name; and

d.  the registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others.

The UDRP and Its Remedies

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by the Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution of disputes regarding the registration of internet domain names. The UDRP applies to all .com, .biz, .info, .name, .net, and .org top-level domains (TLDs), and some country code top-level domains.

In short, if you register a domain name with one of these TLDs, you are subject to the policy.

Under the policy a registrant consents, in advance, to binding arbitration under the UDRP concerning disputes to the ownership of the domain name.  These disputes, which are handled by various authorized private arbitration companies throughout the world, allow for the quick and efficient resolution of UDRP claims.

Of note, the only remedy under a UDRP action for the prevailing party is to have the offending domain name transferred to their ownership.  There are no money damages.

One significant benefit to the system – speed.  From start-to-finish cases can often be completed in roughly 8 weeks.  In light of the current state of our court systems that is about as fast as you are going to get.

The ACPA and Its Remedies

The ACPA was enacted by Congress and signed into law to combat the rising incidences of cybersquatting in the U.S.  Unlike the UDRP which relies upon a relatively simple administrative proceeding, an allegation under the ACPA is generally set forth in a federal district lawsuit filed in a court of competent jurisdiction.

Unlike matters under a UDRP claim, speed is not one of the hallmarks of the federal district court system.  Due to the complexities of the issues involved as well as other actors a case filed under the ACPA in federal district court can take a year or more to reach trial.

However, the remedies under the ACPA are much broader than those under the UDRP.  Should a Plaintiff be successful, in addition to transfer of the disputed name the prevailing party may also be awarded monetary damages, costs, and attorneys’ fees.

Summary

So if you (1) have existing rights in a trademark and (2) someone thereafter registers a domain name similar to that mark (3) in bad faith you may be able to have the domain name transferred to you.  If you just want the domain name pursue the matter under the UDRP.  If you want more, a claim under the ACPA will be required.

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We are often asked what is a trademark, do I have to register it before I use it, and other rather straightforward questions about mark usage in the U.S. and abroad.  In our experience here are five (5) simple facts every business owner should know about trademarks:

1.  What is a Trademark?

A trademark includes any word, name, symbol, or device used in commerce to identify 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 such as Coca-Cola® for beverages, the Nike swoosh for shoes, and FedEx® for package delivery services.

2.  Can I Reserve a Trademark Before I Use It?

Yes. A trademark can be “reserved” with the U.S. Patent and Trademark Office by filing an Intent-to-Use Application for the trademark. Although an Intent-to-Use Application requires additional paperwork to be filed during the Registration Process, it permits persons to reserve a trademark for future use while their business, brand, or product line is developed.

3.  Should a Trademark Search Be Performed to Make Sure my Trademark is Available Before I File an Application to Register the Trademark or Begin Use Thereof?

Yes, although a search is not required. Trademark Research allows you to verify that your proposed mark is not in use by another and is available for you to use.

4.  Do I Have To Register a Trademark to Use a Trademark?

No. However, federal registration has several key advantages which make it important to obtain a registration especially to Enforce a Trademark and preclude others from using your mark or similar marks thereto. A federal trademark registration provides:

* Constructive notice nationwide of your claim of ownership of a trademark;

* Evidence of ownership of the trademark;

* Jurisdiction of federal courts to Enforce a Trademark 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.

5.  Is a U.S. Federal Registration Valid Outside the U.S.?

A U.S. Federal Registration only protects your mark here in the U.S. However, any trademark owner with an application filed in or a registration issued by the U.S. Patent and Trademark Office can extend protection of that trademark into over 71 other countries through a treaty known as The Madrid Protocol.

The Trademark Company

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