Key Harrington Barnes, PC

Establishing and protecting intellectual property rights

Texas football fans might remember InVINCEable, which was trademarked during the college career of quarterback Vince Young. It is an example of a trademark arising from an image or phrase that suddenly becomes part of the public consciousness, in contrast to planned marks which are more common. Indeed, intellectual property rights often represent the combined efforts of business sales gurus and marketing personnel. In either case, they must be protected.

Trademarks are administered in the United States by the U.S. Patent and Trademark Office. They are meant to prevent consumer confusion and protect their owners from infringement. Generally speaking, trademark rights inure as soon as a product or service enters the stream of commerce bearing the mark. In some cases, though, an individual or business may want to secure a mark even before putting anything up for sale. The USPTO allows applicants to file notice of their intent to use a certain mark. Once the mark is used in commerce, an intent-to-use application establishes the date of filing as the date of first use.

The U.S. Copyright Office may also protect business owners who are not yet ready to sell under their mark. Copyright law protects artistic designs such as logos even if they are not associated with a product or service. Regardless of the type of intellectual property, enforcement is key to protection. Owners of a trademark, copyright or patent must diligently enforce their intellectual property rights or risk losing them.

Cease-and-desist letters, for example, give an infringer notice of the rights of the owner. If the infringement continues, the notice may allow for enhanced damages or recovery of attorneys' fees should legal action be necessary. An attorney may be able to help individuals and businesses establish and protect intellectual property rights. The attorney may also be able to draft necessary applications or take action to protect against the misappropriation of a mark.

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