The next time you’re standing around in a bar after class, try something a little different: order a Löwenbräu.
Once you get that tall, frosty bottle of Teutonic brewing excellence, take a drink and then take a close look at the label. That weird gold lion with what looks like feathers on it? That might very well be the oldest trademark in the world.
The company has used and enforced its use of that logo since 1383, illustrating the longevity and stability of a well-established trademark.
As a paralegal working in trademark and copyright law, your job will revolve around helping clients achieve similar recognition by enforcing their rights to protect and profit from their creative works.
There is huge demand for paralegals with expertise in intellectual property subjects. With the ability to create perfect digital copies of creative works with only the click of a mouse today, violations are rampant. And the importance of computer code to almost every aspect of the modern world has brought copyright enforcement to unexpected prominence, as both creators and courts wrestle with technologies that were never imagined when the laws were being written.
Protecting Intellectual Property for the Common Good
Intellectual property (IP) protection in the United States is actually engrained directly in the Constitution, which authorizes Congress to regulate patents and copyrights in order to provide incentive to creators to release their work. If anyone could simply copy someone’s intellectual property and resell it, there would be little motive to develop or release it in the first place.
A trademark is a sign, design, or expression representative of a single brand or product. Most of the logos and graphics you see in advertisements or on store shelves are trademarks. It’s almost a certainty that a paralegal was involved in registering that mark.
Trademarks can be valid even if they are not registered, but for the full protection of the law, registration with the United States Patent and Trademark Office (USPTO) is required.
The process of filing for a trademark is surprisingly easy, but nonetheless most trademark holders either have in-house legal assistance of use a specialty law firm to file their applications. Any glitches in the initial filing can endanger the trademark if it is challenged later on. Paralegals may both prepare and review application documents before submitting them to the USPTO.
Copyright is automatically granted in the United States to the creator of a work of artistic or intellectual expression. These can include:
- Computer software
- Product designs
Copy rights expire after a number of years, which is established by law and can vary based on certain criteria…
- In much of the world, copyright lasts between 50 and 70 years
- In the United States, it lasts for the life of the author, plus 50 years, or 75 years for a work commissioned by a corporation
But it can also be extended in some circumstances… circumstances that paralegals are involved in researching and substantiating.
Copyright is automatically recognized internationally under the Berne Convention or the Buenos Aires Convention.
It’s possible to file with the USPTO to firmly establish copyright status and paralegals may assist rights-holders in doing so. However, they are more commonly involved in enforcement or licensing aspects of managing copyrights.
Managing and Enforcing Intellectual Property Rights as a Paralegal
Paralegals can work either for law firms specializing in rights management or directly for businesses which are heavily invested in intellectual property, including:
- Film studies
- Music studios and record labels
- Software companies
Copyright and trademark status can overlap in some cases. For instance, Edgar Rice Burroughs filed for a trademark on his character Tarzan, which already enjoyed automatic protection by copyright. But copyrights expire, where trademarks can be perpetually maintained. This allowed the Tarzan series to become the forerunner of the modern media franchise, which means the Burroughs estate (Edgar Rice Burroughs Inc (ERB)) was paid for the use of the character’s likeness nearly 100 years after the books were originally written.
Paralegals today are expected to understand the rules of the system with such depth that they, too, can come up with creative ways to maximize the value of a client’s IP. Knowing whether to apply for trademark status or rely on copyright, or if a patent application might be appropriate, is exactly what makes a paralegal valuable.
With all the twists and turns in copyright and trademark law, paralegals become an indispensable part of the legal teams that deal with registration and defense. They are the keepers of the details, the monitors of violations, the minders of important dates and time limits.
Knowing the rules is also important in order to maintain protections. Trademarks have to be kept in actual lawful use in order to maintain their status. Determine exactly what is, and is not, lawful use is a prime job for an IP paralegal. Corporate IP paralegals at major corporations might do little beyond managing a catalog of trademarks and ensuring their registrations remain valid.
Both trademarks and copyrights have certain standards that works have to meet to be eligible. There is rarely a bright line rule involved, so paralegals have to be adept at applying precedent from previous court cases to new works or marks that are being produced.
Works have to be original and substantive to be copyrighted. The name of a product, business, or individual cannot be copyrighted (this, in fact, is what trademarks are designed for).
Exceptions Under Fair Use Doctrine
Additionally, copyrights are not absolute. Paralegals have to become intimately familiar with the Fair Use doctrine, which outlines circumstances under which someone other than the copyright owner can use a copyrighted work. In copyright cases, this kind of highly detail-oriented work is even more important.
Online copyright violation often happens more or less anonymously, with only an IP address providing a clue as to who might be stealing the work. Paralegals have to engage in the detective work to uncover who the IP address is assigned to and then to attempt to find enough identifying information to serve a notice of violation or a legal summons to the violator.
A failure to understand the legal aspects of that doctrine can result in expensive mistakes: in 2011 the Author’s Guild sued Google for scanning books into its digital search store, alleging copyright violation. After three years of ongoing litigation, an appeals court ruled against the guild, saying that Google’s use was proper and allowed.
Preparing For a Position as a Trademark and Copyright Paralegal
The National Federation of Paralegal Associations offers an advanced specialty certification on intellectual property that can be useful to paralegals hoping to go into trademark and copyright law. Other certifications available include patent or trademark certificates offered by IPLegalED or other for-profit companies. There is no universally accepted certificate for IP work, however.
Because almost no work today, in any field, is solely of interest in one country, copyright and trademark paralegals have to be well-versed in international law and treaty agreements.
Rights are territorial; they are not automatically granted worldwide, and protecting them is a matter of understanding both national laws and international agreements like the World Trade Organization Agreement on the Trade-Related Aspects of International Property Rights (TRIPS), the Trademark Law Treaty, and regional agreements like the European Union’s Community Trade Mark system.
Trademark paralegals might also become familiar with the World Intellectual Property Organization’s (WIPO) Madrid system, which offers one way of registering an international trademark in a number of different jurisdictions simultaneously.
Trademark and copyright law are likely to be expanding fields in the legal industry for years to come, and finding a footing in them today will present paralegals with hot prospects for the foreseeable future.