Frequently Asked Questions - All FAQs

First, you should investigate the field to see how people are solving the problem now.  You could have the best solution in the world, but if others don’t see the problem then you won’t sell your solution.  Not solving the problem is your competition, as well.

Build a prototype as you imagined, and make sure that it will work and solve the problem.  You can build a prototype from wood, clay, foam almost anything.  If you can’t build it yourself, you can get a virtual model done.

Now you need to get a handle on the pricing to make sure that you’re not building a $100 lead pencil.  Your pricing does not need to be exact, but you still should make sure that you’re in the ball park.  You do need to have a multiple of about 4-6 from your actual total manufactured cost to retail price.  For example, if you’re making your lead pencil for $1, you will need to price it at $4-6 retail.  Everyone who touches your product needs to make money on it or they won’t sell it.

Now I would do some patent searching at the United States Patent and Trademark Office www.uspto.gov, or at Google patent searching www.google.com

Not exactly. You can file your own application. There is a really good book that can show you how to do it. It’s called Patent It Yourself by David Pressman and is available on www.nolo.com. (Nolo is a self-help legal publisher.) This book will teach you the “tip of the iceberg” type of information to file and prosecute your application.  I refer clients to this title if they are interested in filing themselves.  Almost without fail, they are calling me and asking for help after reviewing this book.  Regardless, I still encourage my clients to be educated and to understand what is going on in the process. This makes it easier for both of us.

Getting a patent number is but one arrow in your business quiver.  Having a patent and successfully selling a product are two different things.  Getting a patent does not make you money. Selling a product does.  Having a patent can get you into Federal Court and allow you to stop another from making, using or selling an infringing product which would erode your sales.

A trademark is any word, name, symbol, sound, or odor that is used to identify and distinquish the goods or services of one seller from another seller.  A trademark is also used to indicate a source of goods or services, or as a source indicator.

We can file a trademark application with either the state or with the United States Patent and Trademark office, along with the fee and a specimen showing your use of the mark in commerce.

There are two different trademark systems.  Each state has a registry and the Federal government has a registry.  Which one you choose depends upon how you are using the mark.  In order for you to successfully register with the Federal system, you must be using the mark on goods or services and selling or advertising across state or federal lines.  For the state system, you should be using the mark in the state of application.  A state registration provides protection within the state, and a federal registration provides protection in all 50 states, Puerto Rico & US Virgin Islands regardless if you have actually sold or advertised in these areas.

You can and should put the “TM” on your mark. This indicates common law rights in the mark.  Common law rights only provide the opportunity to file suit in the areas where you have used or advertise the mark on the goods or services that you are selling.

This means that you have obtained a federal registration for the mark, as it relates to the goods or services for which you file the application.

No, you can only file suit against those who are using the mark in a way that is likely to cause consumer confusion about the source of the goods or services.

Some of the benefits to a federal registration include:

• Public notice of your claim to ownership of the mark;
• A legal presumption of your ownership of the mark, and your exclusive right to use the mark nationwide on and in connection with the goods/services listed in the registration;
• The ability to bring an action concerning the mark in federal court;
• The use of the U.S. registration as a basis to obtain registration in foreign countries;
• The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
• The right to use the federal registration symbol ®; and
• Listing in the United States Patent and Trademark Office’s online databases.

Books and written works, music, videos, photographs, three dimensional works of art, choreography, ad copy, operating instructions, games and game boards, architectural works, software and any other original works of authorship.

You send the copyright office the proper application form, fee and either one or two copies of your work or identifying material. For example: a photograph of a three-dimensional object.

Copyright protection attaches when the work is fixed in a tangible medium. Once this occurs, one can put a copyright notice on it without registration.  There are benefits to applying for and obtaining a copyright registration. 

If you have a registration before someone infringes on one of your rights in copyright, you then can file a lawsuit in Federal Court for copyright infringement.  The registration can allow statutory damages for the infringement, and it’s possible to obtain attorney fees.  This can be a big incentive for a litigator to take the case and a big stick to obtain damages for the infringement.

The owner or those authorized by the owner have the following rights to:

• reproduce the work in copies or photo records;
• prepare derivative works based upon the work;
• distribute copies or photo records of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• display the work publicly, in the case of literary, musical, dramatic, choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
• perform the work publicly (in the case of sound recordings) by means of a digital audio transmission.
• Certain authors of works of visual art also have the rights of attribution and integrity.