Monthly Archives - July 2017

After what came sometimes be a years-long process, you’ve finally received your registration certificate. Congratulations! Now what do you do? First of all, use that ®.  Once a trademark is registered, the owner will want to put the world on notice that their mark is in use and it is registered with the United States Patent and Trademark Office. This saves the owner the extra step of having to notify an infringing party that the mark is protected and that they do not have permission to use it. The ® put the public on notice as the USPTO will not enforce the rights associated with your mark against a potential infringer.  If an owner believes their mark is being used unlawfully, they should contact a Trademark Attorney to go over the best options to resolve the matter quickly and cost-effectively. A Trademark registration has the potential to last indefinitely, as long as the required filings and fees are timely submitted and continued use is shown. The first time a filing is required is between years five and six after the date of registration. This type of filing is called a declaration of use under Section 8 of the Trademark Act. A sample showing use of the mark is required with this filing, not unlike the specimen required during the six-month acceptance period prior to registration. At this time, an owner can also file a declaration of incontestability under section 15 of the Trademark Act, as long as they meet the minimum requirements. This status, if acknowledged by the Trademark Office, makes it harder for challengers to contest the validity of the mark later on, as it conveys a presumption that the mark is entitled to a presumption of validity. The next required filings happen between years nine and ten. An owner is required to file another declaration of use, along with a specimen showing use, under section 8 of the trademark act. The owner is also required to file a renewal application under section 9 of the Trademark Act. The USPTO has made this type of filing easier by combining them into one easy form. Once this filing is complete, maintenance is only required every ten years. If during either of these filing periods, years five to six or nine to ten, the Owner needs additional time, there is a six month grace period for each. However, like most grace periods or extensions with the USPTO, you will be required to pay for the extra time.  The easiest way to remember to keep up with these deadlines is to set reminders now unless you work with a Trademark Attorney who would docket and alert you of the upcoming renewal periods. In summary, as long as you are using the mark in commerce and submitting the necessary renewal documents and fees, maintaining registration of a mark is a fairly straightforward process.

Several countries around that world have created artificial intelligence capable of creating works of art.  Whether the creation is a painting, music or a novel, the artificial intelligence (AI) is taught to analyze pre-existing works in the same genre of artistic expression in order to create an original work. So who owns the copyrights to these works? As of now, the copyright act only extends to legal persons, that is, natural persons and corporate entities, and therefore, the AI cannot own the copyright. So the question becomes, did the AI create the art or did the person who created the AI in turn create the art? This issue is similar to that in the “Monkey Selfie” case. While photographer David Slater was taking pictures of Celebes Crested Macaques, one of the monkeys grabbed a camera remote and took several “selfies.”  Intellectual Property Attorney’s should take note that this case was hotly debated as it raised the issue of whether or not a creator of a copyright could be non-human. Ultimately it was decided that non-humans could not obtain a copyright. Unlike the monkeys, here the AI is created by humans. Someone had to write the code that instructs the AI on what to do and how to do it. Some say that the creators of the AI should own the copyrights to any works created by them. However, they might run into issues of control. In the Monkey Selfie case, it was decided that the photographer did not have enough control over the creation of the work. The Monkey took the camera remote, posed himself, and took his own pictures. Other than setting up cameras near the monkeys, the photographer did very little to facilitate the creation of the pictures. Here, the issue arises when we create AI that can learn. It is at this point that the issue of control resurfaces because the human is no longer in control over every action and decision the AI makes. When the AI has the ability to think and act freely, it will become more difficult for the human creator to take credit for the AI’s work. So what happens if no one can claim copyright protection in the AI created works? Most likely the works would be considered fair use as they are in the public domain and anyone could use, replicate and sell the works without obtaining permission and without having to pay royalties. This not ideal for the AI creators and their companies since a great deal of time and money goes into creating AI.   However, if companies are unable profit off of art created by their robots, we may see limited continuation of this type of technology.