The process of filing for and receiving trademark, copyright, or patent protection for your intellectual property can be time-consuming, but the process doesn’t end there. Protecting your innovation takes time and must be maintained by fulfilling certain standards and maintenance.
The process looks different depending on the type of protection you file for and your long-term intentions. We are going to specifically dive into the standards that apply to renewing and maintaining trademarks, copyrights, and patents.
Maintaining a trademark
We recently touched on this when looking at the ways you can lose a trademark over time. The trademark process can be more arduous than others because the standards require you to prove use or apply for acceptable “nonuse” of the mark you received protection on.
There are benchmarks throughout the life of a trademark where you must apply for an extension and prove use:
- 5-6 years after filing: Section 8 Declaration which states you are either actively using the trademark in commerce or have a permitted exemption for non-use.
- 9-10 years after filing: Section 8 and Section 9 Declaration. A Section 9 Declaration is an application to maintain your trademark going forward.
- Every 10 years after: Section 8 and 9 Declaration.
Maintaining a copyright
The copyright process plays out in a much more straightforward manner. You won’t need to be aware of as many deadlines as you would with trademarks. The timeline depends on when your work was created, published, and/or registered along with who created the work.
For work created on or after January 1, 1978, individual work protection lasts 70 years after the author’s death. When more than one individual contributed to the work, the protection lasts 70 years after the death of the longest-living contributor. If the work is done for hire or work done anonymously/under a pseudonym, then the protection generally lasts for 95 years from publication or 120 years after creation (whichever is shorter).
For works created BEFORE January 1, 1978, the parameters are far different. The 1909 Copyright Act applies in these cases, and the act (along with subsequent legal extensions) provides protection at the time of the first publication of the work and extends for 47 years with renewability for an additional 48 years after that (for a total of 95 years).
If the work was created but not published or registered by January 1, 1978, the copyright lasts for 70 years after the author’s death.
Once any of the above dates are met, the copyright can be extended or released into the public domain. Because many of the dates are based upon the death of the creator, it would be up to the creator’s estate to apply for an extension or not. Once the work is in the public domain, the work can be used without the permission of the author or the author’s estate.
Large corporations like Disney have frequently pushed lawmakers to extend timelines and have been successful in doing so over time. It’s possible these timelines will change so it’s important to work with an intellectual property attorney to stay up-to-date.
Maintaining a patent
Patent maintenance is more similar to trademarks than copyrights, but the patent owner does not have to prove active use of the work that is patented. The type of patent will dictate the timeline.
A utility patent will generally be granted for 20 years from the date a patent application is properly filed. Throughout the course of the 20 years of a utility patent, however, the patent owner will be responsible for paying maintenance fees. Those fees are scheduled four, eight, and 12 years after the patent application is filed.
If a maintenance fee is not paid on time, there is a six-month grace period in which the fee can still be paid before the patent enters the public domain. If the fee is paid during this period, the patent is maintained, but if the fee is not paid then the original patent owner will need to pay additional fees along with the maintenance fee to return it to their portfolio.
Design patents filed on or after May 13, 2015, have a 15-year term while those filed before that date have a 14-year period.
Unlike the other protections, patents are not permitted to be extended beyond the initially granted period unless the patent is “improved upon.” This means a change would need to make the patent different from the initial work in order for an extension to apply.
If you want to protect your innovation, McDermott IP Law is your choice for all your intellectual property needs. Contact us today to get your hard work protected.
McDermott IP Law
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