Do I Need a Copyright?

Register Copyright to Book, Song, Invention for Maximum Protection

Artists, inventors, and innovative business owners who want to make money from their work should seek advice on protecting valuable assets.

In the U.S. Constitution, the authors believed that “To promote the Progress of Science and useful Arts” they would secure for innovative citizens the right to benefit from their work. Therefore, in Article 1, Section 8, they gave to authors and inventors the guarantee that they could secure for limited times the “exclusive Right to their respective Writings and Discoveries.”

At first, however, there were no administrative procedures to register or enforce this right. President George Washington addressed Congress in 1790 and encouraged the development of legal infrastructure. He and others believed that the protection of pursuits in science and literature would strengthen the country. Since then, the federal government has enacted legislation to help creators and innovators protect and make money from their work.

Common Law Copyright

In the United States, a writer, inventor, business owner, or other innovators have a common law right to protection. Any person may recover for actual damages incurred due to another party using a book, song, business model, or even a website as though it belonged to the taker.

However, if the originator of the material had not registered his intellectual property, he cannot recover more than the actual damages he incurred. These damages are often difficult to prove. What did it actually cost the artists, inventor, or business person to develop his book, song, logo, store design, or web content?

More importantly for the originator of the material who hoped to make money from his property, if his material is not registered or patented he may lose his ability to make money on the property in the future. If he has not sought to place further legal protections on the use of the property in the United States beyond the basic level, all money-making potential may be lost.

Internet and Global Business

In today’s world, every business is global. Especially if artistic works or innovative designs are available over the Internet, they can be ripped off, pirated, and used by people anywhere.

Many businesses today are operated largely or entirely online. The business owner may live in Williamsburg, Virginia. He may be communicating over the telephone and via email. He may be researching online and designing and building his website using a variety of database and software applications. But the product he wants to sell may be made in Jamaica or Mexico. His inventory may be located in a warehouse in Virginia Beach. His customer service may be provided by a center in India and his marketing by an agency in New York. An entrepreneur who operates a small, well-planned, sustainable Virginia business from his desk in Williamsburg is truly a global business person.

A global business person needs to copyright the book he wrote about his business success, patent his products or sustainable services, trademark his logo and signature product packaging, and protect his trade secrets, which may include his customer list, business plan, green marketing function, and other elements that define his business as unique.

Registration of Copyright

An author or artist doesn’t necessarily need an attorney in order to register a copyright. It is a fairly simple process that can be completed online. Businesses around the world who hope to profit from sales in the United States should register their property with the U.S. Copyright Office. A number of pages and publications are available on the site to answer further questions.

Owners of web businesses can and should register websites to avoid unscrupulous taking of photos and content for use by another business.

Intellectual Properties Help

Intellectual properties legal actions are usually conducted in federal level courts, not state courts. Therefore, it is best to look for legal help used to taking lawsuits to federal court, should the need arise.

Intellectual properties attorneys help artists and inventors examine their property for strengths and assets that can be protected by law. They advise a property owner on the types of legal protection that are available.

Copycats Hurt Trade

Counterfeit Chocolate Forces Lawsuit

FERRERO ROCHER chocolates with their gold-foil covers and hazel-nut centers have often been counterfeited. Then a Chinese copycat got bold… really bold…

In 1982 Italian chocolate maker FERRARO ROCHER initially began selling its products in China under the Chinese characters for the word JINSHA through a state-owned import company. Four years later, FERRERO registered its name plus its trademark graphic label (an oval shape with lace) with the Chinese Trademark Office.

FERRERO did not register the JINSHA brand name, a big mistake. Chinese copycat Zhangjiagang Dairy Factory One soon started to produce chocolates under the name JINSHA and boldly applied for its trademark in 1990. That’s right, the copycat submitted an application to trademark the name of the brand that they counterfeited.

It wasn’t until Factory One applied to register a combination of both the JINSHA name and the oval graphic did FERRERO file a protest. The Chinese Trademark Office refused Factory One’s application for the combo trademark because the graphical features and visual effects were too similar to FERRERO’s trademark graphics and labeling.

Undaunted, Factory One kept using the oval label on its packaging.

Over the next decade, counterfeit JINSHA chocolate won many awards and trophies in international, national and local competitions. In fact, Factory One’s JINSHA products became more popular in China than the authentic FERRERO ROCHER chocolates.

Part of the reason for Factory One’s success is that in 2002 it obtained a trademark for the JINSHA TRESOR DORE brand which was sold with packaging and labeling that mimicked that of FERRERO ROCHER chocolates.

And instead of focusing on lower-level retail outlets in China’s smaller cities, as most copycats do, Factory One sold JINSHA TRESOR DORE as a high-end product but with a lower price tag than FERRERO ROCHER sweets. Because of the copycat’s careful target-market distribution, International travelers would often find JINSHA chocolates on the shelves of China’s airport duty-free shops.

FERRERO decided that it had to take action and launched a lawsuit against the aggressive copycat. Because it had not registered the JINSHA trademark, FERRERO was compelled to sue under China’s Anti-Unfair Competition Law – with a much harder burden of proof that would have been required under trademark legislation.

And The Winners Are

After an initially unfavorable ruling, FERRERO won its case when China’s Higher People’s Court of Tianjin ruled that Factory One had copied FERRERO’s special packaging without authorization. Factory One’s joint venture company Montresor was ordered to pay US$87,000 to FERRERO as compensation.

Montresor has yet to pay the $87,000 to FERRERO which may force the Italian company to launch yet another lawsuit.

When one considers that FERRERO has spent some US$100,000 to defend its rights in China, perhaps the real winners are the international trademark lawyers in China who earn fat fees for representing the companies embroiled in the battle for trademark rights.