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Franchise Questions and Answers
Frequently Asked Questions
What remedies are available for
infringement of intellectual property rights?
Courts can grant injunctions, restitution,
monetary damages (including actual damages, the amount of the
infringer's gain), and punitive damages. In addition, the losing
party's intellectual property rights may be canceled, and the losing
party may be liable for fees and costs.
What are the advantages of
registering a copyright?
As soon as a work is created, the author
automatically receives federal copyright protection for the work.
Registration of a copyright is not required for protection, but
registration has significant advantages:
||Registration of a copyright creates
a public record of the copyright claim
||Registration grants a copyright
owner the right to sue for copyright infringement
||Registration within five years of
publication creates prima facie evidence that the copyright
||When a copyright is registered
within three months from publication, the copyright owner
may be able to recover attorney's fees and statutory damages
without having to prove monetary loss.
Our company has created and published
informative materials to use with our customers. Now a competitor is
using it without our permission. What can I do about it?
If the competitor is using parts of your
written materials verbatim, then you may have a claim for copyright
violation. On the other hand, if the competitor is using your
concepts, then you may have a claim for unfair business practices.
California's Unfair Competition Law protects
competitors and consumers from illegal, fraudulent, and unfair
business practices. It provides for relief and civil penalties in
cases of unfair competition.
I published information on my Web
site. Now I see excerpts from it on a stranger's Web site. What are
If you designated the Web site pages as
copyright you may be entitled to an injunction to stop the
unauthorized use. If the copying and republishing is of a registered
copyright of a book or e-book with the U.S. Copyright Office, then
you may be entitled to an injunction to stop the misuse and to
statutory damages and fees for copyright infringement.
A former employee has provided a new
employer with our trade secrets without permission. Is there
anything I can do?
Yes. California law protects trade secrets
and provides for remedies for their misappropriation, including
injunctive relief, general and punitive damages, and attorney fees.
Generally, a trade secret misappropriation
claim requires a finding that the offending person knows or has
reason to know that the information is a trade secret, that it was
acquired improperly, and that it is being used without the owner's
express or implied consent.
I created software then licensed to
another company. That company now refuses to pay me. How can I
enforce my rights?
You can enforce your intellectual property
rights and enforce your license agreement. If initial requests to
cure are unsuccessful then you should file a lawsuit requesting a
restraining order, seizure order, and/or preliminary injunction, and
a demand for damages, costs, and attorney fees.
We are at the stage of product
development where we need to solicit external support, and the most
likely source is a company that might be interested in marketing our
invention. How do I protect my intellectual property rights?
You should always protect any proprietary
information at the earliest stage of development and maintain an
active protection program. You should not communicate the details of
your invention in any discussions, whether oral or written without a
signed confidentiality agreement. All subsequent communications to
any outside company should have a cover letter identifying the
information as proprietary and privileged and within the scope of
the confidentiality agreement. Under the terms of the
confidentiality agreement, the company is not to divulge your
information to any other company and not use it for any other
purpose except to evaluate for a business relationship. The
agreement must also specify that providing the information to the
company does not mean that you are transferring or licensing your
intellectual property rights to them.
How can I protect computer software
that I wrote?
Computer software can be protected by
copyright by the original author or to the author's assignee.
Depending on the nature of the software with regard to novelty and
non-obviousness it may be eligible for a patent. While most ordinary
programs, or the mathematical algorithms used, usually are not
patentable, it may be possible for patent protection of algorithms
used to implement novel and non-obvious processes. Copyright is the
most widely used protection for computer software because it is
easier and less costly to obtain. Copyright protection can be
obtained for original software, whether an application program, an
operating system or a database. The holder of the copyright may
license the software to others by contractual agreement. Copyright
protection only protects the specific work, not the idea. Others may
independently create programs with identical or equivalent
capabilities and not infringe your copyright.
What is "work made for hire"?
A copyright is owned by the author or artist
who created the work; unless the author sells (assigns) the
copyright or the work was "made for hire." When a work is created by
an employee while on the job or by an independent contractor who was
hired to create the specified work, the work is usually considered
as a made for hire work. The copyright on work made for hire belongs
to the employer or the party who commissioned the work.
In general, an employee who writes or creates
a work for an employer is creating a work for hire. An independent
contractor may have copyright to a work unless there is an agreement
with the employer which should include an assignment of the
copyright to all work product produced.
What is a right of publicity claim?
The right of publicity is a claim that you
have used someone's name or likeness to your commercial advantage
without consent and resulting in injury. The plaintiff generally
must prove that you are using their image or likeness for
advertising or other solicitations. Freedom of speech rights protect
your use of a public figure's name and likeness in a truthful way,
but you can still be liable if a court determines that your use
implied a false endorsement.
Glossary of Intellectual Property
Intellectual Property Law and Licensing
property (IP) law encompasses the protection a wide variety of
property created by businesses, authors, musicians, artists, and
inventors. Copyright, trademark, trade dress, trade secret, and
patent laws protect intellectual property. IP law protects the
property rights of businesses and individuals from infringement,
unauthorized use, and misuse. By maintaining property rights, an
individual or business can control the use and distribution,
including the sale and licensing of such property.
Licensing is a key
business strategy because it is a way to gain earnings from
inventions and creative works. Licensing is the process where you
grant some rights to intellectual property you own to others. It is
really a business relationship between the licensor, who owns the
IP, and the licensee, who is given the limited right to use it.
licensing by the author or inventor of a new product or technology
requires both IP protection and contractual agreements to realize an
economic benefit from its production. For instance, the author of a
software program or an inventor can grant a license to a corporation
that has the resources to produce and distribute the embodied
are exclusive rights granted to the authors of "original works of
authorship" including literary, dramatic, musical, artistic, and
certain other intellectual works, both published and unpublished. To
qualify for copyright, the creative work must be original and must
exist in some tangible form; it cannot exist only in the author's
mind. The owner of copyright has the exclusive right to reproduce
the copyrighted work, to prepare derivative works, to distribute
copies or phonorecords of the copyrighted work, to perform the
copyrighted work publicly, or to display the copyrighted work
publicly. Copyrights arise automatically as soon as creative works
are made; however, registration affords owners of copyrighted
materials additional legal benefits.
trademark is a word, name, symbol, or device that is used
in trade with goods to indicate the source of the goods and to
distinguish them from the goods of others. A servicemark
is the same as a trademark except that it identifies and
distinguishes the source of a service rather than a product.
Trademarks allow businesses to protect the symbolic
information that identifies the source of goods and services by
preventing use of the information by competitors. Trademark rights
may be used to prevent others from using a confusingly similar mark,
but not to prevent others from making the same goods or from selling
the same goods or services under a clearly different mark. To
receive protection, a word, name, symbol, or device must be
distinctive and must be used in commerce. A trademark need not be
registered, but if it is registered the owner of the mark has put
others on notice that the trademark is already in use.
dress is a distinctive visual appearance of a product or
service that uniquely identifies the product or service to signify
the source to consumers, and is similar to trademark. The shape,
color, and design of a product or its packaging can be trade dress
as can be the design of a building, or the decor and color scheme of
a restaurant or store. To gain registration or common law protection
under the Lanham Act, a trade dress must not be "functional." That
is, the configuration of shapes, designs, colors, or materials that
make up the trade dress in question must not serve a utility or
function outside of creating recognition in the consumer's mind.
secrets are a class of proprietary information that has
commercial value and are "owned" by a business entity. Trade secret
laws protect formulas, patterns, devices, and compilations of
information from use by unauthorized persons. Protection of trade
secrets with other parties is by contract and formal agreements that
are legally enforceable by the trade secret owner.
for an invention is the grant of a property right to the inventor
for new and non-obvious technologies. A patent gives the inventor
"the right to exclude others from making, using, offering for sale,
or selling" the invention in the United States or "importing" the
invention into the United States for a period of time, usually 20
years. During this time the inventor can profit from the invention
by controlling its availability. Patents can be granted for designs
of manufactured products, machines, processes, and combinations of
matter, and in certain cases for plants and other life forms. A
United States patent must be applied for through the US Patent and
Trademark Office and issued US patents are effective only within the
US, US territories, and US possessions.
Franchise Your Business
The attorneys with Michael T. Chulak & Associates can provide you with the legal services needed to
franchise your business for a fixed legal fee. Payment plans are available and we may accept all or a part of your fee based upon
barter. Call us to discuss your plans to develop a franchised business. Initial consultations are free.
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Santa Barbara County:
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San Luis Obispo County:
Arroyo Grande, Atascadero, Avila Beach, Baywood-Los Osos, Cambria, Cayucos, Grover Beach, Lake Nacimiento, Los Osos, Morro Bay, Nipomo, Oceano, Paso Robles, Pismo Beach, San Luis Obispo, San Miguel, San Simeon, Santa Margarita, Templeton.
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