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Your Marlboro Intellectual Property Attorney
If you are trying to protect an invention, a brand, or a creative work in Marlboro, or you have been accused of infringing someone else’s, you probably want plain answers about deadlines, courts, and what each kind of protection covers. Federal statutes set most of them, so many answers can be checked. This page covers the deadlines, the definitions that decide whether something is protected, the federal district court for Cumberland County, and the New Jersey rules that sit next to the federal ones. These rules apply across New Jersey, and an attorney familiar with the District of New Jersey can explain what to expect there.
Quick Answers on Patents, Trademarks, Copyrights, and Trade Secrets
- Who can be liable for patent infringement? Anyone who, without authority, makes, uses, offers to sell, or sells a patented invention in the United States, or imports it (35 U.S.C. 271(a)).
- Federal trademark registration is available to the owner of a mark used in commerce or to a person with a bona fide intention to use one (15 U.S.C. 1051(a)(1), (b)(1)).
- Register first, sue second. No civil action for infringement of the copyright in a United States work can be instituted until registration has been made or refused in the way the statute provides (17 U.S.C. 411(a)).
- Federal trade secret claims must be brought within 3 years after the misappropriation is discovered or should have been discovered with reasonable diligence (18 U.S.C. 1836(d)).
- A federal case from Marlboro goes to the District of New Jersey (28 U.S.C. 110), which sits in Camden, Newark, and Trenton.
The Four Main Areas of Intellectual Property Law
Inventions are the domain of patent law. The categories the statute names are processes, machines, manufactures, and compositions of matter (35 U.S.C. 101), and the patent term ends 20 years from the filing date of the application (35 U.S.C. 154(a)(2)).
A brand is protected as a trademark when it functions to identify and distinguish goods from those of others and to indicate the source of the goods (15 U.S.C. 1127). The same statute defines a service mark for the source of services.
Writing, music, images, film, software text, and similar creative work are the subject of copyright, which subsists in original works of authorship fixed in a tangible medium (17 U.S.C. 102(a)). The statute is equally clear about what is excluded: ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries (17 U.S.C. 102(b)).
If the valuable thing is confidential know-how, the question is trade secret. Both elements in 18 U.S.C. 1839(3) must be present: reasonable measures to keep the information secret, and independent economic value from its not being generally known.
How Long Do You Have to Bring a Claim?
The copyright deadline is three years after the claim accrued (17 U.S.C. 507(b)). An owner who has not registered should treat registration as part of the first steps, since no infringement action on a United States work can be instituted before it (17 U.S.C. 411(a)).
Discovery drives the trade secret clock. A civil action under 18 U.S.C. 1836(b) may not be commenced later than three years after the misappropriation is, or by reasonable diligence should be, discovered (18 U.S.C. 1836(d)).
A patent owner who waits loses damages: under 35 U.S.C. 286, no recovery may be had for infringement committed more than six years before the complaint. The patent itself lasts 20 years from filing (35 U.S.C. 154(a)(2)).
A New Jersey state-law claim brings its own deadline and its own accrual rule. Both come from New Jersey statutes and court decisions and should be reviewed by an attorney at the start of the matter.
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What to Do Before a Dispute Starts
Registration on the federal principal register begins with an application and verified statement. The statute allows the owner of a mark used in commerce to apply (15 U.S.C. 1051(a)(1)) and separately a person with a bona fide intention to use (15 U.S.C. 1051(b)(1)).
In addition to the federal register, a business in New Jersey can file for a state trademark registration with the Division of Revenue and Enterprise Services in the New Jersey Department of the Treasury (see N.J.S.A. 56:3-13.1 and following sections). The state filing is a separate process from the federal application.
For copyright, protection attaches to original works fixed in a tangible medium (17 U.S.C. 102(a)), but before an infringement suit on a United States work can be instituted, preregistration or registration of the copyright claim must have been made (17 U.S.C. 411(a)). A work created on or after January 1, 1978 lasts for the life of the author plus 70 years (17 U.S.C. 302(a)).
The application date controls the length of patent protection, which ends 20 years after filing (35 U.S.C. 154(a)(2)), so planning the filing is part of protecting the invention.
The Federal Court for Cumberland County
In practice, patent and copyright disputes are filed in federal district court (28 U.S.C. 1338(a)), federal trade secret claims start there as well (18 U.S.C. 1836(c)), and a trademark dispute can be filed in federal or state court.
Under 28 U.S.C. 110, New Jersey is one federal judicial district, and Cumberland County is part of it. The District of New Jersey holds court in Camden, Newark, and Trenton.
State-Law Rules for Trademarks and Trade Secrets
Trade secret claims are not only federal. The New Jersey Trade Secrets Act (N.J.S.A. 56:15-1 and following sections) may apply to the same facts, and the federal statute provides its own civil action when the secret relates to a product or service used in, or intended for use in, interstate or foreign commerce (18 U.S.C. 1836(b)(1)).
Trademark protection has a state layer as well. A state trademark registration in New Jersey is filed with the Division of Revenue and Enterprise Services in the New Jersey Department of the Treasury under N.J.S.A. 56:3-13.1 and following sections, and it is separate from federal registration on the principal register (15 U.S.C. 1051).
Choosing between state and federal claims, or bringing both, is something an attorney should decide after reviewing what happened and what proof exists.
What Kinds of Intellectual Property Cases Come Up?
Patent Disputes
Patent disputes turn on the patent’s claims and on conduct listed in 35 U.S.C. 271(a), namely making, using, offering to sell, selling, or importing a patented invention without authority.
A patent case is filed in federal district court (28 U.S.C. 1338(a)).
Confusing Similarity and Brand Protection
Brand disputes often involve both a registered mark and one that has never been registered. Registered marks are protected against likely confusion under 15 U.S.C. 1114(1)(a), and 15 U.S.C. 1125(a)(1) covers false designation of origin more broadly.
Trademark claims may be filed in federal court or in state court (28 U.S.C. 1338(a)).
Copyright Infringement
Whether copying is actionable begins with what is protected. Copyright subsists in original works fixed in a tangible medium (17 U.S.C. 102(a)) and does not reach ideas, procedures, processes, systems, or methods of operation (17 U.S.C. 102(b)).
The duration of a copyright for a work created on or after January 1, 1978 is generally the life of the author plus 70 years (17 U.S.C. 302(a)).
Trade Secret Misappropriation
The Defend Trade Secrets Act lets the owner of a misappropriated trade secret sue when the secret relates to a product or service in interstate or foreign commerce (18 U.S.C. 1836(b)(1)). Whether the information qualifies depends on the definition in 18 U.S.C. 1839(3).
Federal district courts have original jurisdiction over these actions (18 U.S.C. 1836(c)).
Damages, Injunctions, and Other Relief
Patent: a court that finds for the claimant shall award damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention, together with interest and costs, and the court may increase the damages up to three times the amount found or assessed (35 U.S.C. 284). Courts may also grant injunctions in accordance with the principles of equity to prevent the violation of a patent right (35 U.S.C. 283).
The trademark remedies are set out in 15 U.S.C. 1116(a), which gives courts the power to grant injunctions, and 15 U.S.C. 1117(a), which lets a plaintiff recover defendant’s profits, damages, and costs once a violation is established.
A copyright owner can choose between actual damages plus the infringer’s profits attributable to the infringement, and statutory damages (17 U.S.C. 504(a), (b)), and statutory damages range from $750 to $30,000 per work as the court considers just (17 U.S.C. 504(c)(1)).
Delay in registering can cost more than time. Infringement that starts before the effective date of registration generally cannot support statutory damages or attorney’s fees, with the exception in 17 U.S.C. 412 for registration within three months after first publication.
In federal trade secret cases the court can enjoin actual or threatened misappropriation, award damages for loss and unjust enrichment or a reasonable royalty, and, for willful and malicious misappropriation, exemplary damages up to 2 times the damages awarded (18 U.S.C. 1836(b)(3)).
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What an Attorney Will Want to See
Bring a simple chronology. When was the work created, when was it first shared or sold, and when did you first notice the copying or use? Many of the deadlines on this page run from those events.
Patent matters go faster with drawings, lab notes, patent or application numbers, and a list of who has seen the invention. Trademark matters go faster with the mark itself, samples of its use, and any registration documents.
Creators should bring the work itself, dated drafts, and examples of the copy. Owners of confidential information should bring a description of it, a list of who had access, and the steps taken to keep it secret.
What to Know About Cases From Marlboro
Marlboro matters that reach federal court are heard in the District of New Jersey. Knowing which court you will be in matters because deadlines such as the three-year copyright and trade secret limits run regardless of the court.
Injury claims follow different rules, covered on our Marlboro personal injury attorney page. Nearby communities we serve include Lawrence Township, Camden, and Cherry Hill. See where else we help people across New Jersey in our New Jersey intellectual property guide.
Frequently Asked Questions
How far back can I recover damages for patent infringement?
Six years before the complaint. No recovery may be had for infringement committed more than six years before the filing of the complaint (35 U.S.C. 286).
Can I register my business name or logo as a trademark?
A word, name, symbol, or device used to identify and distinguish goods and indicate their source is a trademark (15 U.S.C. 1127), and the owner of a mark used in commerce may request federal registration (15 U.S.C. 1051(a)(1)).
Do I have to register a copyright before I sue?
For a United States work, yes. No civil action for infringement of the copyright may be instituted until preregistration or registration of the copyright claim has been made (17 U.S.C. 411(a)), with a provision for cases where registration was refused.
Can I sue in federal court over a stolen trade secret?
Yes, if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce (18 U.S.C. 1836(b)(1)). The federal district courts have original jurisdiction of these actions (18 U.S.C. 1836(c)).
Which federal court covers Marlboro?
The District of New Jersey (28 U.S.C. 110).
Does New Jersey law protect trade secrets?
Yes. New Jersey has the New Jersey Trade Secrets Act (N.J.S.A. 56:15-1 and following sections), and the federal Defend Trade Secrets Act (18 U.S.C. 1836) adds a separate federal action.
How long do I have to bring a copyright claim?
Three years after the claim accrued (17 U.S.C. 507(b)), and registration must come before suit on a United States work (17 U.S.C. 411(a)).
Can I protect software or written material?
Written material and other original expression fixed in a tangible medium can be protected by copyright (17 U.S.C. 102(a)), but not the underlying ideas, procedures, or methods of operation (17 U.S.C. 102(b)).
Talk to an Attorney About Your Marlboro Matter
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