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Your Cando Intellectual Property Attorney
Intellectual property law splits into four main areas, patents, trademarks, copyrights, and trade secrets, and each has its own rules on where a case is filed and how long you have. The sections below explain those rules for a matter arising in Cando. The sections that follow cover what patents, trademarks, copyrights, and trade secrets protect, the filing deadlines, registration, the federal courts for Towner County, North Dakota’s own trademark and trade secret rules, and what an infringement claim involves. Talking with an attorney who works in the District of North Dakota can turn these general rules into a plan for your matter.
Quick Answers on Patents, Trademarks, Copyrights, and Trade Secrets
- Patent claims are filed in federal court only (28 U.S.C. 1338(a)), and the six-year damages limit in 35 U.S.C. 286 makes early action important.
- Infringing a registered mark means using a reproduction, counterfeit, copy, or colorable imitation in a way likely to cause confusion (15 U.S.C. 1114(1)(a)).
- 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)).
- Trade secrets get a federal 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)), filed in federal district court (18 U.S.C. 1836(c)).
- A federal case from Cando goes to the District of North Dakota (28 U.S.C. 114), which sits in Bismarck, Fargo, Grand Forks, and Minot.
What Patents, Trademarks, Copyrights, and Trade Secrets Protect
A patent protects an invention. Whoever invents or discovers a new and useful process, machine, manufacture, or composition of matter may obtain a patent, subject to the conditions and requirements of the patent statute (35 U.S.C. 101). The term is 20 years from the date the application was filed (35 U.S.C. 154(a)(2)).
Names, logos, and slogans that tell customers who is behind a product are trademarks, defined in 15 U.S.C. 1127 as any word, name, symbol, or device used to identify and distinguish a person’s goods and to indicate their source. A service mark does the same job for services.
A copyright question begins with whether the work is an original work of authorship fixed in a tangible medium (17 U.S.C. 102(a)) and whether what was copied was expression rather than an idea, system, or method (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.
Filing Deadlines and Damages Limits
Under 17 U.S.C. 507(b), a civil copyright action must be commenced within three years after the claim accrued, and under 17 U.S.C. 411(a) the copyright claim for a United States work must be registered, or registration refused, before that action is instituted.
For a federal trade secret claim, the three years run from discovery of the misappropriation, or from when it should have been discovered by reasonable diligence, and a continuing misappropriation is treated as a single claim (18 U.S.C. 1836(d)).
Patents: there is no recovery for infringement committed more than six years before the filing of the complaint or counterclaim for infringement (35 U.S.C. 286). Waiting can therefore shrink the damages available even when the patent itself is still in force.
Do not assume that a state-law claim follows the federal deadlines. North Dakota’s limitation periods and the point when a claim accrues are matters of North Dakota statutes and case law, and an attorney can check the dates for your particular claim.
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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)).
A North Dakota business can ask an attorney whether a state-level trademark filing with the North Dakota Secretary of State is worth adding to a federal application. The provisions are in N.D.C.C. chapter 47-22, and the two registrations are separate.
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 filing date is what starts the patent clock (35 U.S.C. 154(a)(2)), so the timing of an application matters. An attorney can advise whether the invention fits the categories in 35 U.S.C. 101.
Which Court Handles a Claim From Cando
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.
There is only one federal district in North Dakota. The District of North Dakota hears federal cases from Towner County and holds court in Bismarck, Fargo, Grand Forks, and Minot (28 U.S.C. 114).
What North Dakota Law Can Add to Federal Protection
Trade secret claims are not only federal. The Uniform Trade Secrets Act (N.D.C.C. chapter 47-25.1) 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)).
A state trademark registration in North Dakota is a different filing from federal registration (15 U.S.C. 1051). It is made with the North Dakota Secretary of State under N.D.C.C. chapter 47-22.
The details of a state-law claim depend on the facts, and an attorney can explain which of the federal and state claims fit a particular dispute.
The Claims Behind Most Intellectual Property Disputes
Patent Disputes
The basic patent infringement rule is in 35 U.S.C. 271(a): without authority, making, using, offering to sell, or selling a patented invention in the United States, or importing one, during the patent term.
Damages are limited to infringement within the six years before the complaint (35 U.S.C. 286).
Disputes Over Names, Logos, and Brands
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.
Evidence such as first-use dates, sales records, and examples of actual confusion is easiest to gather before a dispute escalates.
Copying of Creative Work
Creative disputes involve two threshold points: the work must be an original work of authorship fixed in a tangible medium (17 U.S.C. 102(a)), and the claim cannot rest on an idea or system (17 U.S.C. 102(b)).
For a United States work, registration must be made before an infringement suit is instituted (17 U.S.C. 411(a)).
Trade Secret Claims
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).
The Uniform Trade Secrets Act (N.D.C.C. chapter 47-25.1) may provide state-law claims alongside the federal action, with their own deadlines.
What a Court Can Award or Order
The patent statute provides for damages adequate to compensate for the infringement, not less than a reasonable royalty (35 U.S.C. 284), and for injunctions to prevent the violation of a patent right (35 U.S.C. 283).
In trademark cases, courts have the power to enjoin violations (15 U.S.C. 1116(a)), and a plaintiff who establishes a violation may recover profits, damages, and costs, subject to sections 1111 and 1114 and the principles of equity (15 U.S.C. 1117(a)).
The copyright statute offers two routes to money relief: actual damages and profits (17 U.S.C. 504(b)) or statutory damages of not less than $750 or more than $30,000 for infringements of any one work (17 U.S.C. 504(c)(1)).
Registration timing affects these remedies: no award of statutory damages or attorney’s fees is available for infringement of an unpublished work commenced before the effective date of its registration, or for infringement commenced after first publication and before registration unless registration is made within three months after first publication (17 U.S.C. 412).
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)).
Protecting an idea, brand, or creative work in Cando? Talk to an attorney about your deadlines.
Documents and Dates That Help
An attorney will usually begin with dates: creation, first disclosure, first use in commerce, first publication, and discovery of the problem. Gathering them ahead of time saves a first meeting for the questions that matter.
If the issue is a patent, gather technical drawings, descriptions, and any application numbers. If it is a trademark, gather the mark, examples of use, and registration information.
For copyright, gather the work, drafts with dates, and examples of copying. For a trade secret, gather what the information is, who could see it, and what confidentiality agreements or security measures applied.
Intellectual Property Matters in Cando and Towner County
If you are protecting or defending intellectual property in Cando, a case that belongs in federal court is filed in the District of North Dakota. An attorney who works in that court regularly can explain how its schedule and practices affect the deadlines above.
People searching outside Cando can use the North Dakota intellectual property listings to find their own city. Intellectual property matters in the surrounding area are covered on our pages for Devils Lake, Rolla, and Rugby. For a personal injury rather than an intellectual property question, our Cando personal injury page explains the North Dakota rules.
Frequently Asked Questions
Where is a patent infringement case filed?
In federal district court. The district courts have original jurisdiction of civil actions arising under patent law, and that jurisdiction is exclusive (28 U.S.C. 1338(a)). For Cando, that is the District of North Dakota.
What is trademark infringement?
For a registered mark, it is using in commerce a reproduction, counterfeit, copy, or colorable imitation in connection with goods or services where the use is likely to cause confusion, mistake, or deception (15 U.S.C. 1114(1)(a)).
Which court hears a copyright case from Cando?
The federal district courts have original jurisdiction over copyright claims (28 U.S.C. 1338(a)). For Cando, that is the District of North Dakota.
What if a former employee took confidential information?
That can be a trade secret claim if the information meets the definition in 18 U.S.C. 1839(3), and the federal deadline is three years from discovery (18 U.S.C. 1836(d)). An attorney can review what was taken and what protections were in place.
Which court handles patent and copyright cases from Cando?
Both belong exclusively in federal district court (28 U.S.C. 1338(a)), which for Cando means the District of North Dakota.
Can I bring both federal and North Dakota claims?
Often yes. A dispute can involve federal claims, such as under 15 U.S.C. 1114 or 18 U.S.C. 1836, and state-law claims under North Dakota law. An attorney can advise which to bring.
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)).
How do I keep information as a trade secret?
Take reasonable measures to keep it secret, because that is one of the two elements of the definition (18 U.S.C. 1839(3)), and consult an attorney about what measures are reasonable for your business.
Connect With a Cando Intellectual Property Attorney
Questions about a patent, a trademark filing, a copyright registration, or a trade secret are exactly what an initial conversation is for. Use the form to get matched with an attorney who can answer them for your case.
