The world of intellectual property (IP) law is a complex, multi-layered one with different countries sporting different sets of regulations. Yet it goes deeper than that – even within the U.S. there are layers, as individual states each enforce copyright and trademark laws in addition to those instituted at a federal level.
For a creative looking to protect their work, managing those nuances can seem like a daunting task. That is why firms such as Hartman Global IP Law make a job out of it, working to see through the layers and protect their clients locally, nationally, and abroad. Domenica Hartman, co-founder of Hartman Global, helped break down some of the nuances separating state and federal IP laws – starting with the simplest, patent protections.
“For patents, any type of prosecution, litigation, or infringement, that’s all going to be determined under federal law,” she said. “There is no state law for patents; it’s only federal.”
Things start getting more complicated with the second pillar of IP law – trademarks. The safest thing to do to protect your work is to file for a federal trademark, Hartman said.
“Federal trademark law is definitely the preferred route to protect your trademark and product if you’re selling in more than one state,” she said. “Once you get through a rigorous examination process, you have very broad protection everywhere in the US regardless of whether you’ve even used that trademark in a particular location.”
Federal protections mean that even if you are only operating your business, or selling your product within select parts of the U.S., no one can take that idea and use it where you haven’t already expanded. A federal trademark is indicated by a circled R marker - ®.
“Let’s say I have a federal trademark I’m only using in Indiana, Illinois, Michigan, and California,” Hartman said. “Even if somebody starts to use something ‘potentially similar’ in Montana, I can go after them even though I’ve never had a client there or operated there.”
State trademarks, indicated by the “TM” marker, are significantly more narrow and do not even protect your work throughout the entire state – only within certain geographic parts of it. If you intend to sell a product online or ever want to grow outside of your area, relying on state trademarks alone leaves you vulnerable.
“Most states fall within the same range of how they interpret their laws,” she said. “Even if I have a state trademark in Lake County, someone elsewhere in the state could use a similar design and expand everywhere else in the country that I have not used my mark and hem me in, preventing me from expanding. That’s why it’s very important, if you ever intend to expand, to get that federal trademark.”
The third pillar of IP law, copyright, also contains very notable differences at the state and federal levels. On a basic level, protection is easy to acquire.
“Copyright protection arises on the publication of any work of creativity,” she said. “If I write a book, print a copy, and put it on my kitchen table, that’s sufficient for publication. It’s an extremely low threshold, but one that has to be overcome to get protection.”
However, enforcing that protection and pursuing damages on a federal level requires registration – indicated by a circled C - ©.
“Federal copyright law is very simplistic,” Hartman said. “About 10 years ago, the law was revised very significantly because of Internet file sharing. If I find someone has copied my work, I don’t have to prove intent, damages, or anything. I just have to say you copied, and if it looks pretty darn similar to what I did, it’s a violation.”
With such simple, broad protections, federal copyright violations are very valuable for original content creators. Violators are required to pay fees to the copyright owner based on a table of statutory damages, with every individual violation requiring payment. Those fees can skyrocket quickly in the digital age.
“If someone took my manuscript and uploaded it to their website, that’s not just one publication,” she said. “They’d look to see how many times that article was viewed. If it was clicked by 2000 readers, you’re paying that fine times 2000. It’s very lucrative to the original creator.”
State copyright laws, on the other hand, are very specific and require borderline unprovable actions by the alleged violator.
“First, I’d have to show that they had access to the work,” Hartman said. “So if the only copy of my manuscript was on my kitchen table and I don’t know if they were ever in my kitchen, I’m out of luck. You also need to prove intent to copy, it’s a factual inquiry where you have to find out what they meant to do. And, if there was intent, there also needs to be some degree of malice and damage. It’s a lot of he said, she said.”
If you are looking for a pilot to help navigate these nuances and more, visit hartmanglobal-ip.com to learn more.
