Legal Question in Business Law in New York

Service mark protection

I have produced materials with a service mark printed on them, but without a copyright. Does the service mark provide any protection against another person or agency duplicating these materials? Thank you.

Asked on 9/23/08, 4:31 pm

1 Answer from Attorneys

Nancy Delain Delain Law Office, PLLC
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Re: Service mark protection

Trademark/service mark protects business goodwill (a service mark is a trademark for a service). Its function is to prevent consumer confusion in the marketplace as to the source of goods or services. A trademark/service mark can be registered with the US Patent & Trademark Office (designated by ), registered with your state's trademark office (designated by ) or entirely unregistered (also designated by ). To register with the USPatent & Trademark Office, the mark must be used in interstate commerce, or there must exist a bona fide intent to use the mark in interstate commerce, and it cannot be confusingly similar to another mark in the same class.

Copyright protects works of authorship. It provides a bundle of rights, defined by statutory law, to the author, such as the exclusive right to duplicate the work, the exclusive right to prepare derivative works, and other rights. Copyright attaches automatically to all covered works (covered works are defined by statutory law, in Title 17 of the US Code) when they are affixed in a tangible medium, but the copyright must be registered to get decent remedies for infringement (the federal courts, which have exclusive jurisdiction over all copyright matters, do not even look at cases without at least a pending registration).

Since you didn't tell us what sort of materials you produced with the service mark but not the copyright, your question is ultimately not answerable with any more specificity than definitions.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

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9/23/08, 4:55 pm

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