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Trademark Confusion

The Confusion over Trademarks

Many people don’t seem to understand the differences between trademarks, copyrights and patents.

It’s an interesting world out there, full of signs, slogans, logos, books, artistic work, and too many other things to mention in a short article. But the main thing to know is that there is a distinct difference in what a trademark is, what copyright means, and what one does with a patent.

Trademark rights act to protect a word or logo as being “the” source for goods/services. E.g. Nike. The instant anyone says that word, we all think of running shoes and well, Michael Jordan. This is the true definition of a trademark. Now here is the interesting thing. You don’t need to file for trademark registration to have common-law trademark rights, but let’s put it this way — if you don’t file and someone infringes on those rights, you’d have a tough time enforcing them. So, it’s best to be safe and not sorry, and file with the US Patent and Trademark Office.

Other things that registering will do for you is provide the “presumption” you’re the trademark’s rightful owner and gives you statutory damages against someone using your mark in bad faith. Once your “mark” is registered, you need to remember to always keep protecting it to keep your trademark rights.

The Copyright Conundrum

The easiest way to explain copyright is to say that if you create something and it falls under the definition of being a creative work, it’s up to you who makes copies and how many copies. Of course, there are exceptions, and knowing what those exceptions are happens to be important.

At this point, it’s usually smart to contact a lawyer well versed in this area, as this type of law has the potential to be extremely complex. By the way, you may sell or even license this copyright, or if you have done work for someone else, then they buy this right in advance.

The major difficulty is defining what constitutes a creative work. Legally, it has to exist in some tangible form — on paper, a disk, or even written in stone. However, what it’s written on isn’t what makes it creative. To be creative, it can’t be just straight factual data; that is where an easily understandable explanation usually ends, as there honestly is even an element of creativity to coding in computer language.

Anything you do that is classified as creative writing, creative editing, etc., is copyrighted. So the distinction is this: the facts can’t be copyrighted, but a very clever and creative organization of those facts may be. This is referred to as compilation copyright. In short, this area may make your head spin, so speak to a copyright lawyer who has his or her head on straight and can outline what you need to know.

Community Property

The origins of the concept of community property are ancient. Briefly said, the phrase “community property” refers to a form of property ownership that exists between a husband and a wife in which each party has a one-half interest in all property acquired by the labor of either party during the course of the parties’ marriage.

Perhaps the most widely recognized form of community property is the amount of wages earned by one party during the course of a marriage. Several states, mostly clustered in the southwestern United States, continue to recognize the concept of community property.

Fact Scenario I

Daria and Jay were high school sweethearts. They married when they were both only 18 years of age. Jay worked for a while as a carpenter until he saved enough money to begin his own business. Daria raised the couple’s three children. Jay’s construction business was quite successful. The income from Jay’s construction business is community property.

Community property is the converse of what is known as “separate property.” Separate property refers to property which belongs to one spouse or the other individually. Separate property includes property owned by a spouse prior to the marriage, as well as property obtained by either spouse through a gift or inheritance during the marriage. Notably, separate property can become community property by agreement or gift, or where the parties commingle their assets in such a way as to make the origin of the assets untraceable.

Fact Scenario II

Prior to her marriage to Jay, Daria’s father died and left Daria $100,000 in savings bonds. After Daria married Jay, Daria cashed in the bonds and placed the entire $100,000 in a checking account titled jointly in the names of Daria and Jay. Some of the money was used as a down payment on the couple’s first house, which was later sold and another purchased thereafter. Daria also used some of the money to pay the couple’s bills, including car payments and medical expenses. By her actions, Daria may be deemed to have converted her separate property into community property.

The law with regard to community property and separate property varies from state to state. Thus, the laws of the various states must be consulted individually for details.