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Your Charleston Intellectual Property Attorney
If you are trying to protect an invention, a brand, or a creative work in Charleston, 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. The sections that follow cover what patents, trademarks, copyrights, and trade secrets protect, the filing deadlines, registration, the federal courts for Berkeley and Charleston counties, South Carolina’s own trademark and trade secret rules, and what an infringement claim involves. Talking with an attorney who works in the District of South Carolina can turn these general rules into a plan for your matter.
Quick Answers on Patents, Trademarks, Copyrights, and Trade Secrets
- Patent term and damages: a patent lasts 20 years from the filing date of the application (35 U.S.C. 154(a)(2)), and no recovery can be had for infringement more than six years before the complaint (35 U.S.C. 286).
- Trademark claims can go to federal or state court (28 U.S.C. 1338(a)), and South Carolina’s own registration is a separate filing with the South Carolina Secretary of State.
- Three years to bring a copyright claim (17 U.S.C. 507(b)), and federal district courts have original jurisdiction over copyright claims (28 U.S.C. 1338(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 Charleston goes to the District of South Carolina (28 U.S.C. 121), which sits in Charleston, Columbia, Florence, Aiken, Orangeburg, Greenville, Rock Hill, Greenwood, Anderson, Spartanburg, and Beaufort.
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)).
Under 15 U.S.C. 1127, a trademark is any word, name, symbol, or device, or a combination, that identifies and distinguishes one person’s goods from another’s and indicates their source, and a service mark performs that function for services.
Copyright protects original works of authorship fixed in any tangible medium of expression (17 U.S.C. 102(a)), such as literary, musical, dramatic, and pictorial works, motion pictures, sound recordings, and architectural works. It never extends to an idea, procedure, process, system, method of operation, concept, principle, or discovery (17 U.S.C. 102(b)).
Business and technical information such as plans, formulas, and processes qualifies as a trade secret only if the owner has taken reasonable measures to keep it secret and it derives independent economic value from secrecy (18 U.S.C. 1839(3)).
Time Limits That Matter in Patent, Copyright, and Trade Secret Cases
Three years is the copyright limit in 17 U.S.C. 507(b), measured from when the claim accrued. Registration comes first under 17 U.S.C. 411(a), so the clock and the registration process can overlap.
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)).
For patent damages, the look-back is six years from the complaint (35 U.S.C. 286), which is separate from the 20-year patent term measured from the filing date (35 U.S.C. 154(a)(2)).
Do not assume that a state-law claim follows the federal deadlines. South Carolina’s limitation periods and the point when a claim accrues are matters of South Carolina statutes and case law, and an attorney can check the dates for your particular claim.
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Registering and Protecting Your Rights
A business planning a brand can file for federal registration based on actual use in commerce (15 U.S.C. 1051(a)(1)) or based on a bona fide intention to use it (15 U.S.C. 1051(b)(1)).
State registration is a different filing from a federal application. In South Carolina it is made with the South Carolina Secretary of State under Chapter 15 of Title 39 of the South Carolina Code, and an attorney can tell you whether a state filing, a federal filing, or both suit your plans.
Registering a copyright before there is a dispute avoids a delay later. The statute says no civil action for infringement of the copyright in a United States work may be instituted until preregistration or registration has been made (17 U.S.C. 411(a)).
Inventors should keep the 20-year term measured from filing in mind (35 U.S.C. 154(a)(2)), and should confirm early with an attorney that the invention falls within 35 U.S.C. 101.
Federal and State Courts for Intellectual Property Claims
Patent, plant variety protection, and copyright claims belong exclusively in federal court: the district courts have original jurisdiction of any civil action arising under an Act of Congress relating to patents, plant variety protection, copyrights, and trademarks, and no state court may hear the patent, plant variety protection, and copyright claims (28 U.S.C. 1338(a)). Trademark claims may also be brought in state court.
By statute the whole state is a single federal district (28 U.S.C. 121). A federal case from Charleston is filed in the District of South Carolina, where court is held at Charleston, Columbia, Florence, Aiken, Orangeburg, Greenville, Rock Hill, Greenwood, Anderson, Spartanburg, and Beaufort. Because Charleston lies in more than one county, it is worth confirming which county the matter falls in.
South Carolina Law Alongside Federal Law
South Carolina has a trade secret statute of its own, the South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130). A trade secret dispute from Charleston can involve that statute, and the federal Defend Trade Secrets Act adds a civil action in federal court for a trade secret related to a product or service used in interstate or foreign commerce (18 U.S.C. 1836(b)(1), (c)).
A state trademark registration in South Carolina is a different filing from federal registration (15 U.S.C. 1051). It is made with the South Carolina Secretary of State under Chapter 15 of Title 39 of the South Carolina Code.
Whether to plead federal claims, state claims, or both turns on the facts, and an initial conversation with an attorney is the way to sort that out.
The Basics of Each Type of Claim
Patent Claims and Defenses
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.
Because the six-year damages limit in 35 U.S.C. 286 runs back from the complaint, delay can reduce what is recoverable.
Confusing Similarity and Brand Protection
For a registered mark, the core question is whether the defendant’s use of a reproduction, copy, counterfeit, or colorable imitation is likely to cause confusion, mistake, or deception in connection with goods or services (15 U.S.C. 1114(1)(a)).
A person who believes he or she is or is likely to be damaged can bring the civil action under 15 U.S.C. 1125(a)(1).
Copying of Creative Work
In a copyright case, the first questions are whether the work is protected at all under 17 U.S.C. 102(a) and whether what was copied was protected expression rather than an idea or method excluded by 17 U.S.C. 102(b).
A civil action must be commenced within three years after the claim accrued (17 U.S.C. 507(b)).
Confidential Information and Departing Employees
Trade secret cases often turn on whether the owner took reasonable measures to keep the information secret and whether it has independent economic value from not being generally known, the two elements of 18 U.S.C. 1839(3).
The South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130) may provide state-law claims alongside the federal action, with their own deadlines.
Remedies in Intellectual Property Cases
In a patent case, the statute directs an award of damages adequate to compensate for the infringement and never less than a reasonable royalty, plus interest and costs, with increases of up to three times possible in the court’s discretion (35 U.S.C. 284). Injunctions are available in accordance with the principles of equity (35 U.S.C. 283).
For trademark violations, the Lanham Act allows injunctions on terms the court considers reasonable (15 U.S.C. 1116(a)) and allows recovery, subject to equity, of the defendant’s profits, the plaintiff’s damages, and the costs of the action (15 U.S.C. 1117(a)).
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)).
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)).
Facing an infringement dispute in Charleston? Find out where your matter stands.
What to Gather Before You Talk to an Attorney
Write down a short timeline before the call: when the work or invention was made, when it was first shown to anyone, and when you learned of the problem. The federal deadlines above are measured from dates like these.
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.
What to Know About Cases From Charleston
A matter from Charleston belongs to Berkeley and Charleston counties and, when it is a federal case, to the District of South Carolina. Local practice, such as how quickly cases are scheduled and how disputes are handled, shapes how the general rules on this page play out.
For a personal injury rather than an intellectual property question, our Charleston personal injury page explains the South Carolina rules. People in this part of the state also look to our pages for Mount Pleasant, North Charleston, and Wando. If your matter arose in a different city, start from our statewide South Carolina intellectual property directory.
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 Charleston, that is the District of South Carolina.
What is the difference between federal and South Carolina trademark registration?
Federal registration is on the principal register through the Patent and Trademark Office (15 U.S.C. 1051). South Carolina registration is a separate filing made with the South Carolina Secretary of State under Chapter 15 of Title 39 of the South Carolina Code, and it does not replace the federal one.
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.
Does South Carolina have a trade secret statute?
Yes. It is the South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130). The federal Defend Trade Secrets Act provides a separate civil action (18 U.S.C. 1836), and an attorney can tell you which claims fit the facts.
Where does the federal court for Charleston hold court?
The District of South Carolina holds court in Charleston, Columbia, Florence, Aiken, Orangeburg, Greenville, Rock Hill, Greenwood, Anderson, Spartanburg, and Beaufort (28 U.S.C. 121).
Does state registration replace federal registration?
No. A state registration, where one is available, is a separate filing from federal registration on the principal register (15 U.S.C. 1051), and each operates on its own.
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 a logo or slogan?
A word, name, symbol, or device used to identify and distinguish goods or services and indicate their source can be a trademark or service mark (15 U.S.C. 1127).
Take the Next Step in Your Charleston Intellectual Property Matter
An intellectual property matter is easier to handle with someone reading the documents alongside you. Submit the form to be connected with an attorney who can go over your work, the deadlines, and the court for Berkeley and Charleston counties.
