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PALM BEACH, FL – I’ve registered a few trademarks before, but I have never registered an actual patent; they are much more complicated, and unlike “phrases”, “symbols”, or “words”, which can easily be trademarked and filed online for a few hundred dollars, a patent is an “invention”, “method” or “process” (think Google’s algorithm) and there is a ton more paperwork involved including diagrams of how the patent works and functions clearly detailing its uniqueness.
There are a lot of benefits to owning your own patent or trademark, but with those benefits come responsibilities for the owner if they intend to protect it and actually collect damages if or when it is infringed upon.
For instance, if you own a registered trademark, you are obligated to police and protect that mark, and if you fail to do so, you risk any due compensation if or when another company infringes on your mark.
Failure to enforce a trademark by monitoring the mark for misuses will result in a weakening of the mark and loss of distinctiveness, which can lead to a loss of the trademark.”
Justia – Intellectual Property – Trademarks – Trademark Enforcement
When properly protecting your mark, a plaintiff (the owner) has the right to file a lawsuit for actual damages (if they can be determined) – plus, if a court believes the infringement was willful, it could allow for statutory damages as high as $2,000,000. Yikes.
As far as patents, similar obligations are in place to properly notify the public that your patent exists.
The patent marking statute explains the consequences if there is a failure to mark a product correctly with the patent number. Such failure to mark will mean that you have failed to give the public constructive notice of your patent”
UpCounsel.com – Trademark Infringement Penalties
Along with ordinary notification processes, many patent owners may not know that in 2011 Congress changed the patent markings statute to include something called “virtual marking” which includes a specific website address being used such as www.company.com/patents.
The wed address should be used to “associates the products with the patents”, effectively giving the public proper notice.
According to BloombergLaw.com, in a decision by a Delaware court last month (August 2019), [Mfg. Res. Int’l v. Smartscapes], the court found a plaintiff’s website failed to comply with the “virtual marking” requirement, and thus plaintiff failed to meet the requirements of the statute. According to the article, this was the first ruling where an improper virtual marking cost the plaintiff their case. The article was written by Dan McDonald who has over 30 years of experience litigating and trying intellectual property cases concerning patents, copyrights, trademarks and trade secrets.
It sounds like if you have a patent it might be a good time to revisit with your patent attorney to find out whether or not your website needs any changes and whether or not you should be using this company.com/patents web address, and if you are already using it, if it is listing your patent or patents correctly.
REPORT ON VIRTUAL MARKING – UNITED STATES PATENT AND TRADEMARK OFFICE
About The Author: John Colascione is Chief Executive Officer of Internet Marketing Services Inc. He specializes in Website Monetization, is a Google AdWords Certified Professional, authored a ‘how to’ book called ”Mastering Your Website‘, and is a key player in several Internet related businesses through his search engine strategy brand Searchen Networks®
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