Copyright and Trademark Litigation and Counseling

Agility IP Law has represented many companies and individuals in copyright and trademark matters. These matters have included copyright and trademark litigation, as well as counseling, "cease and desist" letters, and negotiation to resolve such issues.

Copyright Protection

U.S. federal law (17 U.S.C. § 101, et seq.) defines copyright protection for "original works of authorship," which include literary, dramatic, musical, artistic, photographic and certain other intellectual works. In particular, for technology companies, copyright law protects against the copying of computer software, whether as source code or executable code.

However, it is important to recognize that copyright law does not protect "ideas." Rather, it protects the original "expression" of ideas – e.g., the particular choice and arrangement of words in a book, notes of a song, or commands in a software program. According to 17 U.S.C. § 102(b), copyright protection does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery."

For example, a copyright will protect a book about a method for losing weight, but it will not protect the actual weight loss method itself. Thus, copyright law would prohibit someone from making copies of the weight loss book, but it would not prohibit someone from either: (a) following the weight loss method taught in the book; or (b) writing their own original book on how they used the weight loss method.

Thus, it is important to realize that patent and trade secret protection are often critical supplements to help safeguard the intellectual property incorporated in software. For example, although copyright protection prohibits direct copying of software, a patent can help to block others from incorporating the innovative functionality of a software program.

Trademark Protection

A trademark (or a service mark) is a distinctive name or symbol that helps consumers identify the products or services of a particular business. Essentially, the trademark acts to identify the unique source of the goods or services, and distinguish that unique source from others who may provide similar products or services.

As a form of intellectual property, a trademark is typically a name, catchphrase, logo, color combination, symbol, or a combination of these things. Compared to other forms of intellectual property, trademarks are unique because they are protected by both Federal law (under the Lanham Act) and state law (under the common law of trademarks).

Trademark protection is important to safeguard a company's name and goodwill, and prevents others from capitalizing on those important assets for their own benefit.

Representative Copyright and Trademark Matters

Copart, Inc. adv. Woltz, N.D. Cal. No. CV-94-3629 VRW (1996-97). Jim Otteson represented defendant Copart, which was accused of infringing copyrighted software allegedly owned by plaintiff Woltz. Mr. Otteson successfully narrowed the case on summary judgment by establishing that Copart had an implied license to copy and use the software. Following a one-week bench trial, Copart obtained a complete defense verdict by proving that it used the software within the scope of its implied license.