When dealing with literary, dramatic, artistic or musical work it is a good practice to register the copyright existing in the work. Similarly, all logos and service marks which are used for business purposes should be registered as trademarks. While it is not absolutely necessary to get copyright or trademark registration done, there are certain critical advantages that arise from registration.
This post shall focus on the advantages arising from registration and on how these advantages give you an offensive protection of your intellectual property.
Advantages of registration
First and foremost, registering your copyright and your service mark creates a legal presumption that you have a valid copyright or trademark. This is important when filing a suit for infringement as it places the burden on the defendant to show that your copyright or trademark is invalid. This burden acts as an incentive for many a defendant to settle the case instead of opting for litigation.
Especially, in the case of trademark registration, it is compulsory to register a trademark to file a suit under the Trademark Act. Otherwise, it is not possible to avail the remedies provided in the Act. Moreover, since the right of the first user is omnipotent in trademark cases, it becomes easy to prove right of first user by mentioning the date on which the trademark was registered. Further, a trademark can be registered even before the actual business starts.
The recent case of Lupin Ltd. v Johnson & Johnson is interesting in this aspect. The plaintiff Lupin Ltd., has a registered mark ‘LUCYNTA’ and had brought an action of infringement against the defendant Johnson & Johnson for using the mark ‘NUCYNTA’. The defendant had proved that the defenadant’s mark was registered much prior to the registration of the plaintiff’s mark in India. Consequently, the defendant alleged that the plaintiff had adopted a deceptively similar mark and therefore should not be entitled to any relief.
In the case, the Bombay High Court acknowledged that generally courts should not consider the validity of the registration of a mark on a motion for interlocutory injunction. The Bombay High Court further stated that as long as a mark remains on the register, even if wrongly, others should not imitate it.
Similarly, registering your copyright provides you with relief that would be unavailable if the work was not registered. For example, in the United States, the owner of a registered copyright is entitled to damages equal to actual damages plus the infringer’s profits or statutory damages, and attorney fees and costs.
In the case of Getaped.com, Inc., v. Shelly Cangemi, the defendants copied content from Getaped.com’s web site and displayed it on their web sites. Initially after hearing evidence, the U.S. Magistrate ruled that Getaped.com’s actual damages were $1,050. However on reviewing the decision, the District Court found that the costs must be increased and entered judgement against the defendants for $30,000 in statutory damages plus attorney fees and costs of $16,015.
Additionally, both copyright and trademark registrations ensure that the general public is notified that you are the owner of these rights. This notification ensures that there is no innocent infringement.
Considering the advantages offered, it is important to note that the cost associated with registration is very small. Therefore, registering your copyright or service mark is the economically feasible and legally smart thing to do.