Typical client charges for such a search
and related analysis and opinion is $ 450.
A mark may be registered at the States and
Federal level, provided that certain requirements are satisfied. At the
State level, the mark is simply registered with the Secretary of States
and notice must be provided locally.
At the Federal level, applications for
trademark registration are subject to substantive examination in an
arcane administrative proceeding that may span 2-4 years, or more.
Registering your trademark in the Federal System would be done hourly
and range from between $1,000-2,000, plus government fees (filing,
publication & registration) of approximately $ 1000.00 accruing between
application filing and mark registration, depending on the number of
different classes of goods and services for which registration is
Registration at the Federal level
requires actual use or intent to use the mark “in commerce”. Federal
registration provides several desirable benefits, including, among
others: nationwide constructive notice and use; prima facie evidence of
validity, ownership and right of use; Federal jurisdiction; the right to
Customs agency enforcement barring importation of goods bearing
infringing marks; treble damages, atty. fees and other desirable
Copyright protects original works of
authorship fixed in a tangible medium of expression. The law generally
requires that the work embody at least a very minimal amount, or
modicum, of creativity, and that the work be conceptually separable from
any utilitarian aspects thereof. Mere compilations, for example
alphabetically arranged directories, have been refused protection for
lack of originality and/or creativity; Hard work, “sweat of the brow”,
alone is insufficient to merit copyright protection.
Statutory works include, among others,
literary works (e.g. poetry, musical lyrics, writings, software, etc.),
pictorial, graphic and sculptural works (e.g. drawings, photos, blue
prints, computer screen displays associated with software, buildings,
etc.), and choreographic works.
The copyright protection afforded
software is generally not very great, since software is inherently
utilitarian, but exists nevertheless. In some cases, software inventions
may be eligible for patent protection in addition to that of copyright,
as discussed below.
Original works are protected upon
fixation. Notice, e.g. “© Name, Year, All Rights Reserved”, is not
required, but is recommended. It bars innocent infringement defenses and
may deter some copying. The copyrighted work may also be registered at
the Copyright Office. Registration is generally required for filing an
infringement action and provides enhanced remedies. Copyright
registration is therefore recommended for works having commercial
Trade Secrets And Related Agreements
Trade secret protection is available
for any information having economic value resulting from its not being
known generally, so long as the information is the subject of reasonable
efforts to maintain its secrecy. State law governs trade secrets.
Utility patent protection is generally
available for useful inventions that are novel and non-obvious. Patent
protection extends generally to articles of manufacture, machines,
compositions of matter, and processes.
Recently, Federal courts have ruled
explicitly that software inventions and business methods or models are
not exempt per se from patent protection, so long as the statutory
requirements for patentability are satisfied. These inventions have
nevertheless been protected for some time under various other guises.
Design patent protection is available
for ornamental designs for articles of manufacture, as opposed to the
article itself. For example, surface indicia on the article, a design
for the overall shape or configuration of the article, and combinations
thereof. Design patent protection has been extended to include
computer-generated icons. Designs must satisfy the novelty and
Patent protection is the strongest and
arguably the most desirable form of intellectual property protection,
where applicable. For some inventions, however, for example those where
the commercial life span thereof is not more than a couple of years,
patent protection may not be as great, since patents take about two
years to obtain. There may nevertheless be advantages to filing patent
applications under these circumstances, since goods marked with “patent
pending” create substantial uncertainty for competitors. Also, other
inventions may be better protected by trade secret, for example some
processes that may not be reverse engineered by mere inspection of the
article produced thereby.
The total cost for a patent is not less
than $ 7,000 for the simplest of inventions. For example, the minimum
cost for preparation of a simple mechanical patent specification is
about $ 3,500, plus the costs of formal drawings, about $100 per sheet.
For individuals and small businesses, the government costs (filing and
issue fees) are approximately $ 1,000; the cost is double for entities
with more than 500 employees. There are also attorney fees associated
with the procurement of the patent, estimated to be approximately $