My contact was very thorough in her responses to my questions; in which she partnered with a fellow law graduate. In an effort to ease the translation, I have resorted to copy and paste: Enjoy!
What is the best way(s) to protect your intellectual property?
The form of protection depends on the work. Generally, you should seek a trademark for a name, symbol or other device that distinguishes your product. Apply for a patent if you have made an invention or discovery that is new, non-obvious and useful. If you have produced an original work of authorship in a tangible medium of expression, such as a book, computer program, visual artwork or motion picture, copyright is the appropriate protection. Information that you keep confidential for the health of your business, such as a formula or source code, may find protection as a trade secret.
Where do you recommend a designer look for a template of how to write a contract?
While google has an endless array of decent links for template contracts, it would be worthwhile for a designer to invest in using an attorney to draft their initial contract that he would be using with clients. A standard contract could be helpful for a designer if they are doing substantially the same work with all of their clients. And, ensuring that the initial contract was tailored to the designer's needs is vital.
When is it necessary to trademark intellectual property?
You may apply for registration of a trade or service mark after you use a mark on a product on in promotion of a service performed "in commerce". In commerce, simplified, mean for advertising and/or sale to customers. You may also register your company's intention to use a mark prior to its use and the complete application with a sample of its use in commerce.
How can I prove that there has been an infringement on my copyright?
To prove that someone infringed on your copyright you must show actual copying of protected material that has led to substantial similarity between the infringing work and your copyrighted work.You can prove copying if there is direct or indirect evidence that someone took material from your work.
Are there specialized courts in the United States that hear intellectual property claims?
The US does not have courts that are exclusively dedicated to hearing intellectual property matters. Rather, intellectual property claims are usually brought in federal district court to be presided over by that court's judge. While these judges are not charged with the specific knowledge of intellectual property matters, many have become intimately familiar with the principles and issues involved.
Is Nevada an “employment at will” (ie. right to work) state? If so, do you agree with an employee signing a non-compete agreements?
Nevada is an "employment at will" state. This means that an employer can fire whoever they want, when they want, for whatever reason they want, with limited exceptions, as long as it is not for a discriminatory purpose. The two main exceptions are when an employee is covered by a collective bargaining agreement or have a written contract for employment. A non-compete should only be signed by an employee as a bargained for agreement. It is the employee's right to work for whomever they want. Therefore, if an employee agrees to not work for a competitor they should be receiving some sort of compensation for it in return.
What is the first step someone should take if or when they find someone else using their intellectual property without permission?
I’d recommend writing a letter pointing out your ownership of the intellectual property and asking if they are aware they are using exclusive material. Most infringements stop at this point.
If an interior designer specs out a specific piece of furniture or flooring, and the item injures someone. Can he or she be held liable?
For the interior designer to be liable, he would have to have foreseen the injury, that is, have been aware of the likelihood of an accident and disregarded such likelihood. This is unlikely, at best. However, I know many interior designers that sell the furniture the spec. out. If the interior designer sells it, the interior designer is absolutely open to liability as the retailer in a products liability case. Of course, the manufacturer should indemnify the reseller, but that is not always certain. Additionally, this raises a point that is of greater concern than whether you "can" be held liable, but rather whether you will be sued. Whether or not the furniture was foreseeably dangerous, if furniture you spec. out was built shabby by the manufacturer, who will ultimately be found liable, you are likely to be sued regardless. Thus, this question is really one of general liability. To ensure the designer is not liable, the designer should be working under an LLC or "S" corp and not as a sole proprietor or fictitious name. Since interior designers are service oriented, there are no tax advantages to being a corporation, and thus, should be an LLC. (Easy to set up). Additionally, this question goes hand in hand with the contract question below. It should be a provision of the contract that the designer does not warranty the safety or use of any furniture spec.'d out, but rather makes such choices for aesthetic reasons only and that the client is ultimately responsible for ensuring the proper safety and precautions of any specified pieces. Furthermore, the contract should contain a provision that requires the client to indemnify the designer for any suits that arise from the agreement. (Sorry, more than one or two sentences)
If I propose a design for a potential client and they refuse the design but use it regardless what can I do?
If they use your design, they have infringed on your copyrighted work. One does not need to actually file a copyright to gain the rights of ones own work.
Do you know the rough percentage of cases that are found in favor of the original creator concerning intellectual property?
I have no idea and am unaware of any system to track such. Both my friend mike and I had no idea on this one. Sorry.
In design, how much of a percentage of change do two similar products have to be in order to avoid a lawsuit?
Fair use only allows for de minimis use of a person's intellectual property. For a person to avoid lawsuit, the official statement is that the differences must be significant enough for the new design/product/etc.. to be considered a separate, new, or distinguishable design. Fair use only allows for a small enough portion of a persons protected property to be used in a manner that the protected work as a whole cannot be seen from that which is used. (Think of the Coldplay music controversy...that one is close one, I think) For instance, a collage of many pictures from many different photos, where only the face of a person in the photo is used would be fair use, but not if enough of the picture was to be able to tell it came from a particular picture.
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