Copyright and Trademark

"Copyright" is how your rights to the content of an original composition--graphic, sound, or multi-media--are legally protected. Under existing law you have an automatic common law copyright for any piece you create; registering the copyright with the Library of Congress, however, creates an official notice to the public at large, and legal evidence, of the date and substance of your work. We strongly recommend copyrighting any work (writing, program, design, etc.) about which your commercial intent is serious, or where you could suffer by imitation or plagiarism.

Traditional copyright law still applies to computer-created works, including online publishing. In fact, it may be more important than ever to copyright original works because copying from data files is so easy. However, the copyright registration form designed for computer programs is only for software programs per se. A story or poem written in, for example, Microsoft Word® and uploaded to this server is (as far as the copyright office is concerned) no different than one hammered out manually on a typewriter, and the usual Form TX applies.

Copyrighting involves submitting the entire "work" for most creations. Programmers can register programs "containing trade secrets" so as not to have the whole product in a public file. This procedure involves submitting only certain pages of the source code, with the portions containing trade secrets blocked out; or submitting combinations of object code and source code.

Whether to copyright computer screen displays is another decision programmers and multimedia authors must make; many attorneys recommend it for unique text or artwork. This can be done by submitting print-outs, photographs, drawings, or, for works that are predominantly audio-visual, 1/2-inch VHS videotape.

Authors should use a copyright mark (the symbol ©) along with the date of publication on any copies distributed even though you have not yet registered the copyright with the Federal Government. Engelman & Smith also recommends that the copyright notice appear at the user's terminal at sign-on, continually on terminal display, or at or near the title of anything printed out. While these protections duplicate putting a gummed label on a disk or program packaging, they provide an extra level of security -- especially when programs may be obtained without any tangible disk ever changing hands.

"Trademark" is the process by which the identification of a product or service is protected: brand names, labels, logos, distinctive styles and looks, even colors. Designs and created products themselves are typically the subject of copyright; however, any distinctive packaging, features, or name for a line of designed products could be protectable by trademark. Example: the song "Yesterday" would be the subject of copyright, but both the name "Beatles" and the distinctive Beatles logo (with the long T) could be protected by trademark.

Similar to copyright, using a trade name in commerc creates common law trademark rights. Registering a mark, however, provides the additional protection of a date-certain evidence of use, letting the world know that you use the mark for your products or services. Registering your name, logo, or trade dress places that mark in databases which can be accessed by any potential competitor considering a similar name. Thus, trademark can discourage the use of similarly confusing marks.

The first step in trademarking is a search of all registered, pending, published, cancelled, expired, and abandoned federal Trademark Records files; of all state trademarks; and of approximately one hundred trade journals, white page listings from major U.S. cities, and the millions of company names and addresses listed in various databses. A search typically yields some similar-sounding names, but they may not be for products that could be confused with yours.

Applying for the trademark requires three different specimen examples of the mark as actually used by you "in trade or commerce", such as in brochures, advertisements, promotional materials, marketing circulars, flyers, letters to potential or actual clients. The mark needs to be spelled the same in every example submitted, and spelled the same way as your intended mark. If you are not yet using a trademark, you may still apply for one as a mark that you have an intent to use in the future. Consult your attorney for details.

The above is not intended as a substitute for full legal advice, but only as general information that may or may not apply to your particular needs. Trademark and copyright are matters of federal protection and Engelman & Smith handles such matters. As to any specific aspects of non-Illinois state law, we suggest you consult an attorney in your area.

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