Federal intellectual property laws provide the most protection for types of intellectual property throughout the United States. The U.S. Patent Act is the source of protection for patented new inventions, while the U.S. Copyright Act protects original artistic creations, e.g., musical compositions, written works and visual works of art.
If another individual or business makes an unauthorized use of another’s intellectual property, it may be infringement, or use that is not allowed under federal law. For this reason, a lawsuit that seeks to stop infringement should be filed in federal court.
Businesses that operate only within Florida may protect their trademarks by registering their mark with the Florida Department of State. This state-level registration covers trademarks and service marks only within the boundaries of Florida. The mark should be in use with goods or services on the market before an application can be filed.
When Do I Need an Intellectual Property Lawyer in Florida?
When another person or business makes use of a person’s intellectual property, whether the property is a copyrighted production, a patented design, or a trademark, they need to consult a Florida intellectual property lawyer to learn about their options for protecting their property.
What Is Copyright Infringement in Florida?
The federal Copyright Act gives authors of creative works the exclusive right to authorize certain uses of their copyrighted work. This federal law applies in Florida as in every other state. In Florida, copyright infringement is using a copyrighted work without the permission of the copyright owner. This is the case in every other state as well.
The holder, or owner, of a copyright has the exclusive legal right to make use of their work, e.g., to reproduce it, distribute it, and/or to create derivative works, e.g., sequels. Of course, they can and do license others to make uses with their permission through licensing agreements.
If another person or entity does any of these things without the holder’s express permission, they have infringed on the copyright. However, the fair use doctrine allows a party to use copyrighted material for certain limited purposes that are considered permissible because they benefit the public interest. Examples of fair use are art criticism in newspapers, magazines and social media, news reporting, and scholarly research.
What Are the Penalties for Copyright Infringement in Florida?
In Florida, the remedies below are available to owners of copyrighted intellectual property for copyright infringement by other parties under federal law. If negotiation with an infringing party does not yield a solution, the copyright holder could file a lawsuit naming the infringing party as a defendant and asking for the following relief:
- Money Damages: The amount of money would be compensation for any financial losses the copyright holder suffers because of the infringement, such as lost profits, lost licensing fees, and damages allowed by statute. The copyright holder might also recover any profits that the infringing party may have made from their infringement.
- Injunctions: The copyright owner can ask a court to issue an injunction, or order that would direct the infringing party to stop their use and not to distribute the copyrighted material.
- Seizure and Destruction: A court may order the seizure and destruction of all copies of the protected work that the infringing party may have. A court could also order that the infringement cease.
- Attorney’s Fees and Costs: If the copyright holder wins their lawsuit, they may be able to recover the attorneys’ fees and costs they incurred in prosecuting their lawsuit.
- Criminal Proceedings: Copyright infringement can also be prosecuted as a criminal offense in some cases. A person who is convicted of criminal copyright infringement may be sentenced to incarceration and/or the payment of a fine.
In Florida, trademark rights are also recognized under the Florida Trademark Act. As noted above, Florida law provides protection to trademark owners and sets the rules for registering trademarks in Florida. Trademarks can also be enforced under Florida law. The same kinds of remedies are available under Florida law as are offered by federal law. A Florida lawyer consultation would offer a person more information about Florida trademark law.
What Are Royalty Disputes? Are These the Same as Infringement?
Royalty disputes happen among the parties to the production of a creative work, such a film or musical record. The marketing of the creative product generates income, referred to as “royalties.” Usually the parties who participated in the production have a contract regarding how this income should be distributed among them.
For example, in the music industry, generally the composer of the musical work, the producers and record labels or others who produce and market the musical work each expect to receive a portion of the musical royalties generated. Again, they may have a royalty agreement that specifies the income is to be distributed among them. But disputes arise, of course, and a party to a royalty contract may want a Florida lawyer to protect their interest if a dispute develops.
What Are the Legal Defenses to Infringement in Florida?
A defendant who can prove a defense successfully would not be liable to the copyright owner for infringement. There are several standard defenses.
One of the most common defenses to alleged copyright infringement fair use. The fair use doctrine essentially permits someone to use copyrighted material for certain limited purposes. These uses are allowed because they are thought to benefit the public interest.
Some examples of fair use are academic research, art criticism published in the media, news journalism, and education. Courts consider the following four factors when they decide whether a particular use is a fair use:
- The purpose and character of the use, including whether the use serves a commercial purpose or is for educational or other non-profit purposes
- The character of the copyrighted work that has been used
- The amount of the work that may have been used and whether it was substantial in relation to the copyrighted work as a whole
- The effect of the use on the potential market for the copyrighted work or its value.
Another way to defend against a claim of copyright infringement is to prove that the work that is claimed to infringe on a copyright is, in reality, a new and independent creation. In most cases, the law allows the court to infer that the defendant infringed on the copyright owner’s work solely on the basis that the infringing work is substantially similar to the copyrighted work. Also, the copyright owner might support this inference by proving the defendant’s access to the copyrighted work.
However, the inference can be avoided if the defendant can prove that they created their work independently. Evidence of independent creation would be written records and other items showing the defendant’s creative process. For example, first and subsequent drafts of a written work, notes and communications between the creator and others about their process would support the defense.
In some cases, the “scènes à faire” doctrine may prove to be a successful defense in some cases. Certain works may have elements that are characteristic of its genre and these would not be protected by copyright.
For example, a spy novel is going to have a spy as one of the main characters. A detective is always a main character in a murder mystery. There are also standard scenes in certain genres, e.g., in a mystery, discovery of a corpse. A cowboy, an outlaw and a lawman are likely to be characters in a western. Elements such as these are not protected by copyright.
What Is a Trademark Under Florida Law?
Under both federal and Florida state law, a trademark comprises a number of elements that a business assembles to identify its products or services in the marketplace. A trademark may include a word or phrase and a logo, symbol, or product design that a business adopts to allow consumers to identify the business’s products or services and to differentiate from the products or services of other businesses.
A business can register its trademark with the state of Florida and with the federal government to protect it from use by competitors.
The following are elements of trademarks:
- Word Marks: Word marks comprise words that may be the name of a business and its advertising slogans. A business wants its word mark to be associated with the business’s brand, e.g., the slogan, “Eat Fresh,” which is a word mark of the Subway brand.
- Logo Marks: Logo marks are graphic designs or symbols, e.g., McDonald’s golden arches, that a business uses to establish its unique identity in commerce.
- Combination Marks: Combination marks are words, e.g., a company name, combined with its visual logo, e.g., Kentucky Fried Chicken and its logo with the picture of Colonel Sanders and the letters “KFC.” Its word mark is “Finger lickin’ good.”
- Service Marks: Businesses that offer services as opposed to products have service marks as opposed to trademarks, which are used by businesses that offer physical products.
- Trade Dress: Trade dress is the unique appearance of a business’s product packaging or design.
Businesses can register their trademarks with the U.S. Patent and Trademark Office (USPTO), which provides protection from use by others in all 50 states. However, businesses that operate only locally within Florida may want to register their trademark in Florida, and this is an option under Florida law.
The procedure for registering a trademark in Florida is as follows:
- Database Search: The applicant must search the Florida Department of State database for existing trademarks to ensure that their trademark is unique.
- Submit a Trademark Application: The applicant must submit a Florida trademark or service mark application to the Florida Division of Corporations website or by mail. There is a filing fee that must be paid. The application should include the following information:
- The trademark name and logo
- Information about the owner
- A description of the goods and/or services marketed by the business and associated with the trademark
- A sample of the trademark in use (if applicable).
Processing can take several weeks. If approved, the trademark is valid for 5 years and can be renewed.
What Are Common Types of Trademarks in Florida?
We are all familiar with many kinds of trademarks, even if we do not know that they are trademarks. Some well-known trademarks are the following:
- Google: The characteristic lettering with distinctive coloring of the company name identifies the world’s most popular internet search engine.
- Vodafone: A distinctive apostrophe logo is part of the trademark of one of the largest telecommunications networks in the world.
- “Fly the Friendly Skies”: This is a slogan used by United Airlines, an international airline.
Companies have visual designs with characteristic colors that are their logos, and these logos are always presented by the company in the same form on their products and packaging. The logo and its standard design are part of a company’s trademark.
Should I Hire a Florida Intellectual Property Lawyer?
If you believe that someone is infringing on your intellectual property, you want to consult a Florida intellectual property lawyer. Your lawyer can review the facts and determine if you are dealing with infringement on your legally protected intellectual work, whether it is copyrighted, patented or a registered trademark. Your lawyer can work to put a stop to the infringement, through negotiation or through legal action if that is necessary.
