An owner of intellectual property rights can enforce their right without registration. Additional rights may be given if there is notice to the public. Below, I outline how rights are stronger notice has been given to the public about a certain intellectual property right.
What is public notice?
Public notice is telling the public about your rights. “Notice to the public.” Notice can be important to prove the public had “constructive notice” of your rights. Constructive notice shows that a person or entity should have known of the right, as a reasonable person would have, even if they have no actual knowledge of it.
Trademarks (TM)
Under trademark law, there are levels of rights a trademark owner may have.
A trademark rights has begins its rights with common law rights. The rights are obtained by using a distinctive mark in commerce. The rights associated in common law are limited to the geographic area in which the mark is used.
Adding a “TM” (trademark) or “SM” (service mark) symbol puts the public at notice that the trademark is in use. The public notice may deter others from using similar marks as well.
The step above public notice is state registration then federal registration. State registration is when the trademark is registered in the state and the state provide the trademark owner with legal rights through common law unfair competition principles and state trademark statutes. Federal registration is when the trademark is registered with the USPTO and the rights are given under the Lanham Act (also known as the Trademark Act of 1946).
Copyright (C)
Similar to trademarks, Copyright also has levels of rights.
Common law rights start when there is a publication of a work.
A notice may be given to the public by adding:
- (c) symbol (or “Copr.” or Copyright);
- The year of first publication; and
- The name of the copyright owner.
The copyright notice will put the public on notice to help eliminate an innocent infringement defense, deter infringement, and assist in helping others find the copyright owners.
The next step up, also includes federal registration of the copyright. Registration provides rights under the 1909 Copyright Act. Rights include suing for infringement in certain circumstances, statutory damages, presumption of validity, eliminate the innocent infringement defense, and stop importation of infringing copies.
Patents
Although patents must be registered before the owner has rights, the owner may still give notice to the public of their rights. The public notice allows for a patent owner to prove that an infringer of constructive notice of their rights to meet requirements in the patent statutes.