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Copyright Registrations – Do You Need ‘Em?

This is for non-lawyers and lawyers who do not practice in the area of intellectual property.  It is meant to correct a very common and damaging misconception about United States copyright law.  As an intellectual property litigator, I see this error frequently and, for those copyright owners who end-up having to deal with an infringer, it creates a serious problem.

Most of us understand that works gain the protection of U.S. copyright law when they are created and fixed in some tangible format.  This is accurate and important but, at the same time, a little bit misleading.  Creating and fixing your work affords you with rights, but  . . . and here is the key . . . you cannot enforce those rights without a copyright registration (A refusal from the Copyright Office to register will also suffice, although you will have to prove to the court that the Copyright Office’s refusal was improper).

In other words, you cannot bring a lawsuit under the U.S. Copyright Act until your work is registered or registration was refused.  If your work is infringed, you can rush to register it, but having waiting, you will likely have forfeited your right to recover money damages or attorney fees.

So, register your work and do so early.  Think of the registration as your key to the courtroom.

And, while on the topic, let’s quickly address another misconception.  There is no “poor man’s copyright.”  The practice of sending a copy of your own work to yourself and then relying on the date on the envelope gives no copyright protection.  Save your stamp!

David M. Lilenfeld

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Google AdWord Litigation of Trademark Issues Continues

The Atlanta-Journal Constitution asked me to write about Google’s keyword advertising practices for its paper.

The online advertising trademark tug-of-war continues.  One of Google’s most determined opponents has been Rosetta Stone, maker of second language software.  After losing to the search engine giant at the district court level, Rosetta Stone brought the fight to the Fourth Circuit where its appeal pends.

One barometer of the importance of legal issues raised on appeal is the number of amicus briefs filed.  My guess is that 90% of federal appeals have no amicus briefs.  This case has a backbreaking 36, almost all by trademark owners supporting Rosetta Stone’s position that Google’s ad programs either directly or indirectly infringe their trademarks.

With billions of advertising revenue at stake, Google is leaving no stone unturned. A loss here could cost GOOG billions.

Estoy deseando leer esta opinión!  (That is, “I am looking forward to reading this opinion” in Spanish).

David M. Lilenfeld

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