INTELLECTUAL PROPERTY RIGHTS IN THE UNITED STATES OF AMERICA
First Renewal Term
Subsequent Renewal Term
In the USA, federal trademarks are registered before the United States Patent and Trademark Office, most commonly referred to by its abbreviation of USPTO.
The United States is a signatory to the key international trademark agreements, namely the Madrid Protocol, the Paris Convention for the Protection of Industrial Property, the North American Free Trade Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights, and the Singapore Treaty on the Law of Trademarks.
The United States of America follows the 10th edition of Nice Classification. Multi-class trademark applications are not acceptable.
Both federal and state law govern the protection and registration of trademarks in the United States. On the federal level, the Trademark (Lanham) Act 1946 (15 USC § 1051 et seq) is the primary legislation. Each state has its own trademark laws.
Since the USA is a ‘first-to-use’ jurisdiction, continued use of the trademark is essential for maintaining its protection.
The registration process in the USA varies slightly according to the filing basis chosen, as does the time it takes, although on an average for straightforward cases, the timeframe would be twelve (12) to eighteen (18) months.
Within thirty (30) days from the date of publication of the trademark application in the Trademark Official Gazette, any third party and other trademark owners may oppose it. In such a case, they can also file for an extension of time for a period of maximum 180 days for filing an opposition against the trademark, subject to the approval from the USPTO.
Registered trademarks last for ten (10) years from the date of registration, which can be further renewed indefinitely for successive periods of ten (10) years each as long as the mark is in use in commerce.
An application for renewal must be filed within one (01) year before the expiration date of the registration, or within the grace period of six (06) months after the expiration date of the registration.
35 USC Title 35 deals with the mechanism of patent protection in the USA.
Utility model protection is not available under the legislation of the USA.
The USPTO is responsible for administering patents. Three forms of patent protection are available in the USA:
-Utility patents (for novel inventions or processes; equivalent to Australian standard patents) - last for a minimum of twenty (20) years from the date of application
-Design patents (similar to Australian registered designs) – last for fifteen (15) years
-Plant patents (similar to Australian plant breeder's rights) - last for twenty (20) years from the date of application.
The USA is a signatory to the international Patent Cooperation Treaty (PCT). Applications filed through the PCT can seek utility patent protection with the USPTO.
In USA, an invention that satisfies the conditions of originality, novelty, inventive step, and industrial applicability, subjects to patentability. Process patent and product patent are the two types of patents that can be protected.
The types of patent applications that can be filed include Non-Convention Application and Convention Application.
The USA now has a ‘first-to-file’ rule for obtaining the patents rights, which is in line with other patent systems.
The official issue fee for a patent in the USA should be paid within three (03) months from the mailing of the Notice of Allowance. Annual fees are due at years 3.5, 7.5, and 11.5 from the patent issue date and may be paid within a period of five (05) months preceding the due date without a surcharge. Late payment with a surcharge is possible within six (06) months after the expiry of the period set forth above.
The US law allows a grace period of one (01) year for an inventor to register a patent from the date of public disclosure.
Design patents are governed by the US patent law statute. As set forth in 35 USC § 171, design patents provide protection for the ornamental design of an article of manufacture.
The USA is a member of the Hague Agreement, and can therefore, be designated in an international application where the applicant is able to establish entitlement.
Each design patent in the United States has a single claim.
Multiple embodiments of a single concept may be filed in one design application as long as their appearance and shape are similar.
The types of industrial design applications that can be filed in the USA include Non-Convention Application and Convention Application.
Utility model protection isn't provided under industrial design protection in the nation.
Design patent grants emanating from applications filed in the United States on or after May 13, 2015 enjoy a term of fifteen (15) years from the date of grant. Design patent grants emanating from applications filed in the United States before this date have a term of fourteen (14) years. The United States does not require any renewal or maintenance fees for design patents to remain in force through their terms.
The USA is a signatory to the Berne Convention for the Protection of Literary and Artistic Works.
Copyright law in the USA is governed by the federal statute, namely the Copyright Act of 1976.
Copyright can be registered in the Copyright Office in the Library of Congress, but newly created works do not need to be registered. In fact, it is no longer necessary to even place a copyright notice on a work for it to be protected by copyright law. However, the Copyright Act does provide additional benefits to those who register their works with the Copyright Office. Consequently, copyright registration and the use of a copyright notice are recommended.
As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional seventy (70) years.
For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of ninety-five (95) years from the year of its first publication or a term of hundred and twenty (120) years from the year of its creation, whichever expires first.