General Characteristics of a Corporation
Trade Marks and Service Marks
Copyright Law





General Characteristics of a Corporation

Separate existence. A corporation through legal fiction has it own legal existence and with that existence come economic rights. Some of those rights are: the right too enter into a contract; due process protection of corporate assets against state and federal government takings; freedom of commercial speech in the form of advertisements; and equal protection of the Fourteenth Amendment. A corporation does not have individual rights such as: the 5th amendment right to protection against self incrimination, the 4th amendment protection against unreasonable search and seizure or the 1st amendment protection of political free speech. Because of this separate existence created by legal fiction, a corporation can exist beyond the lives of it's shareholders.

Centralized management. Corporate law provides an organizational structure to operate the business and the capital of many individuals. The basic structure is as follows. Shareholders are the owners of the corporation, directors are elected by the shareholders and are the locus of power. Directors appoint the corporate officers. Directors approve policy and procedures of the operations of the corporation. Corporate officers carry on the day to day activities of the corporation and serve at the pleasure of the board of directors.

Transferability of ownership interest. The issuance of shares creates a kind of currency in with value based on the assets owned by the corporation or the financial performance of the corporation. Shares facilitate transferability of ownership. This enhances the marketability of the entity and allows for an exit strategy for the owners.

Limited liability. A corporation shields its owners from personal liability for the debt of the corporation.


Trade Marks and Service Marks

If you use a slogan or logo, consider registering your company's marks, both to protect your investment in the mark and to prevent unintentional violations of marks of other businesses. A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

Generally, the first party who uses a mark in commerce has the ultimate right to register a mark. Registration in California is effective for 10 years, renewable for another 10 years, and there is no limitation on the number of renewals. Registration with the state of California serves as prima facie evidence of ownership of such mark as applied to the goods or services and it is constructive notice of the registrant = s claim of ownership.

In addition to establishing the right of use, a registered mark acts as a shield against potential law suits and protects the owner of the mark from others who have concurrent or prior use of a similar mark. Any owner of a mark registered may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits. California law provides that any court of competent jurisdiction may grant injunctions and shall require the defendants to pay to the owner up to three times their profits from and up to three times all damages suffered by reason of the wrongful manufacture, use, display, or sale of a registered mark.

You can also obtain national protection by registration with the US Patent and Trademark Office. A U.S. registration requires that the product or service behind the mark be placed in interstate or international commerce. Use of a mark in purely local commerce within a state does not qualify as interstate commerce. An applicant may apply for federal registration in two principal ways: (1) An applicant who has already commenced using a mark in commerce may file based on that use (a @ use @ application). Advertising without actually providing the product or service will not qualify as a A use @ application. (2) An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an A intent-to-use @ application).


Copyright Law

Registration is Not Required. Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the "work") can be fixed in sheet music (" copies") or in phonograph disks (" phonorecords"), or both.

Advantages of Registration. In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

•  Registration establishes a public record of the copyright claim.
•  Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
•  If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
•  If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
•  Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, request Publication No. 563 "How to Protect Your Intellectual Property Right," from: U.S. Customs Service, P.O. Box 7404, Washington, D.C. 20044. See the U.S. Customs Service Website at www.customs.gov for online publications.

Original Registration. To register a work, send the following three elements in the same envelope or package to:

Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

•  A properly completed application form. (Form TX is a two page application for nondramatic literary works. Non-dramatic literary works are literary works that are not meant to be performed.) All Copyright Office forms are available on the Copyright Office Website in fill-in version. Go to www.loc.gov/copyright/forms/ and follow the instructions.

•  A nonrefundable filing fee of $30 (effective through June 30, 2002) for each application.

•  A nonreturnable deposit of the work being registered. If the work was first published in the United States on or after January 1, 1978, two complete copies or phonorecords of the best edition.

Length of Protection. A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

 Notice. The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office .

•  The symbol 8 (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and

•  The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and

•  The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: 8 2000 John Doe