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Your Folly Beach Intellectual Property Attorney
A patent, a trademark, a copyright, and a trade secret are four different things with four different sets of rules. For a Folly Beach business, artist, or inventor, the first step is knowing which one is actually involved, and this page walks through how to tell. This page covers the deadlines, the definitions that decide whether something is protected, the federal district court for Charleston County, and the South Carolina rules that sit next to the federal ones. These rules apply across South Carolina, and an attorney familiar with the District of South Carolina can explain what to expect there.
Deadlines and Courts: The Short Version
- 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)).
- 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)).
- South Carolina has its own trade secret statute, the South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130), and the federal action in 18 U.S.C. 1836 sits alongside it.
- The federal court for Folly Beach is the District of South Carolina, with court held at Charleston, Columbia, Florence, Aiken, Orangeburg, Greenville, Rock Hill, Greenwood, Anderson, Spartanburg, and Beaufort (28 U.S.C. 121).
The Four Main Areas of Intellectual Property Law
If you have made something new and useful, such as a device, a process, a manufactured article, or a composition, a patent is the tool the statute provides (35 U.S.C. 101). The grant runs from issuance to 20 years after the application was filed (35 U.S.C. 154(a)(2)).
If the issue is a business name, logo, or slogan, the question is trademark, which the Lanham Act defines as a word, name, symbol, or device that identifies and distinguishes goods and indicates their source (15 U.S.C. 1127), with service marks covering 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)).
A trade secret is information the owner has taken reasonable measures to keep secret and that derives independent economic value from not being generally known to, and not being readily ascertainable through proper means by, another person (18 U.S.C. 1839(3)). The statute covers financial, business, scientific, and technical information such as patterns, plans, formulas, designs, methods, processes, programs, and codes.
Filing Deadlines and Damages Limits
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 South Carolina state-law claim brings its own deadline and its own accrual rule. Both come from South Carolina statutes and court decisions and should be reviewed by an attorney at the start of the matter.
Protecting your work in Folly Beach? Get matched with an attorney now.
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)).
South Carolina also has its own trademark registration. A state filing is made with the South Carolina Secretary of State under Chapter 15 of Title 39 of the South Carolina Code, is separate from the federal register, and does not replace a federal application.
Copyright exists without a filing, but a lawsuit about a United States work requires preregistration or registration first (17 U.S.C. 411(a)). The standard term for a work created on or after January 1, 1978 is the life of the author and 70 years after the author’s death (17 U.S.C. 302(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
Under 28 U.S.C. 1338(a), the federal district courts have original jurisdiction over patent, plant variety protection, copyright, and trademark claims, and that jurisdiction is exclusive for patents, plant variety protection, and copyrights. A trademark claim can also be brought in state court.
The federal court for Folly Beach is the District of South Carolina, which covers all of South Carolina (28 U.S.C. 121) and holds court in Charleston, Columbia, Florence, Aiken, Orangeburg, Greenville, Rock Hill, Greenwood, Anderson, Spartanburg, and Beaufort.
State-Law Rules for Trademarks and Trade Secrets
Trade secret claims are not only federal. The South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130) 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 brand owner in Folly Beach may have state-law options in addition to federal ones. South Carolina’s trademark registration provisions are found in Chapter 15 of Title 39 of the South Carolina Code, and the filing office is the South Carolina Secretary of State.
A lawyer can compare the federal and state routes for your situation and explain the tradeoffs.
Types of Intellectual Property Claims
Patent Disputes
Infringement occurs when someone, without authority, makes, uses, offers to sell, or sells any patented invention within the United States, or imports a patented invention into the United States, during the term of the patent (35 U.S.C. 271(a)).
The patent term is 20 years from the filing date (35 U.S.C. 154(a)(2)), so a case about an expired patent is limited to past infringement.
Trademark and Unfair Competition Claims
Infringement of a registered mark means using in commerce a reproduction, counterfeit, copy, or colorable imitation of the mark in connection with the sale, offering for sale, distribution, or advertising of goods or services where the use is likely to cause confusion, mistake, or deception (15 U.S.C. 1114(1)(a)).
A state registration in South Carolina (Chapter 15 of Title 39 of the South Carolina Code) is different from federal registration on the principal register (15 U.S.C. 1051).
Copyright Infringement
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
In a trade secret dispute, both sides examine the same two things: the steps the owner took to keep the information secret and the value that comes from its not being generally known or readily ascertainable (18 U.S.C. 1839(3)).
Documents showing who had access, and what confidentiality steps existed, are among the first things to preserve.
What a Successful Claim Can Recover
For patents, 35 U.S.C. 284 sets the damages floor at a reasonable royalty and lets the court increase damages up to three times the amount found or assessed, and 35 U.S.C. 283 allows injunctions according to the principles of equity, on terms the court considers reasonable.
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)).
Under 17 U.S.C. 504, the choice is between actual damages with additional profits and statutory damages, which the court sets between $750 and $30,000 for any one work.
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.
The Defend Trade Secrets Act lists the remedies: an injunction, damages for actual loss and unjust enrichment (or a reasonable royalty), exemplary damages of not more than 2 times the damages for willful and malicious misappropriation, and attorney’s fees in the situations the statute names (18 U.S.C. 1836(b)(3)).
Was your work copied or your brand used without permission? Talk to an attorney in Charleston County.
Getting Your Records in Order
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.
Inventors should collect drawings, notes, and application numbers, and brand owners should collect the mark, examples of use, and any registration papers, before the first conversation.
For a copyright question, bring the work, dated drafts, any registration papers, and examples of the copying. For a trade secret question, bring a description of the information, who had access, and what confidentiality steps were in place, such as agreements and access controls.
A Note on Folly Beach and the Federal Court
Deadlines and definitions are the same across South Carolina, and the courthouse is not. A federal case from Folly Beach is filed in the District of South Carolina, and getting the timeline for that court from an attorney who practices there is a sound first step.
Looking beyond Folly Beach? Our statewide South Carolina intellectual property page lists every city we cover. Nearby communities we serve include Charleston, Mount Pleasant, and North Charleston. Hurt in an accident rather than dealing with a patent, trademark, or copyright issue? Read our Folly Beach personal injury page.
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 Folly Beach, that is the District of South Carolina.
Can a trademark case be filed in state court?
Yes. The federal district courts have original jurisdiction over trademark claims, and trademark claims may also be brought in state court (28 U.S.C. 1338(a)).
What kinds of work does copyright cover?
Original works of authorship fixed in any tangible medium of expression (17 U.S.C. 102(a)), including literary, musical, dramatic, and pictorial works, motion pictures, sound recordings, and architectural works.
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.
Are trade secret cases filed in federal court?
A federal trade secret action under 18 U.S.C. 1836 is filed in federal district court (18 U.S.C. 1836(c)), and South Carolina state-law claims are separate claims.
Does South Carolina law protect trade secrets?
Yes. South Carolina has the South Carolina Trade Secrets Act (S.C. Code 39-8-10 to 39-8-130), and the federal Defend Trade Secrets Act (18 U.S.C. 1836) adds a separate federal action.
Is there a deadline to sue for patent infringement?
Patent damages reach back six years before the complaint (35 U.S.C. 286), so delay can reduce recovery even while the patent is in force.
What should I do if someone copies my work?
Note the dates, keep copies, and speak with an attorney early, since deadlines such as three years for copyright (17 U.S.C. 507(b)) and six years of look-back for patent damages (35 U.S.C. 286) run from the events.
Speak With Someone Who Handles Cases Like Yours
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