Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 07/21/98, Thomas Workman <tworkman[_at_]erols.com> wrote:
> >
> > What CFR or experience leads you to believe his is the procedure?
> > My experience is that it is not the case...
>
> Being told (about two years ago now) by Office staff "We do a search
> prior to registering works."
There is no authority for a search, as a reason to deny registration. You don't get a search for your $20, which is the fee to register a copyright. A patent or a trademark are several hundred dollars to apply for, and you get a search. You get what you pay for. For $20, no governmental organization can conduct any kind of a search....
> Apparently some of them are designated as "examiners." It was a bit
> of a surprise to me at the time, too.
"Examiners" does not imply a search. A Copyright examiner simply makes sure that the form is filled out, that the deposit is present, and that the material meets the statutory language of what may be copyrighted. The term "Examiner" may be unfortunate, if you assume that the responsiblities present for a Patent examiner are included -- for a Copyright "Examiner", the duties are very, very different.
> Since I am accustomed to dealing with the PTO, I am used to examiners
> doing a SEARCH -- I don't think the Copyright Office version could be
> very thorough, given the size of their staff.
As I mentioned, they do not even try.
In addition, for patents and trademarks, there is a "safety net" procedure to allow for determination of true ownership, as in the case of patents, this is called an "interference", and is governed by 35 USC 135. Both Patents and Trademarks have facilities to challenge ownership. In the Patent world, this is a "Reexamination", governed by 35 USC sec.302, and for Trademarks, any person can "oppose" a proposed trademark through an "Opposition", pursuant to 15 USC sec 1063.
Searches, and challenges as to the true owner, are not provided to the Copyright Office by statute. You will not find an analog to reexaminations, interferences, or oppositions in the Copyright statutes. The Copyright office will follow the order of a Federal Court (not a state Court). They do not have the authority to sort out who a true owner is of material, and they cannot assume that the first to register is the true owner (the US does not philosophically support "first to file" in any IP doctrine, especially patents).
For those who want to read the statutory language for patents and trademarks, the text of these statutes is appended to this Email...
Thomas Workman
35 USC Sec. 302. Request for reexamination
Any person at any time may file a request for reexamination by the Office of any claim of a patent on the basis of any prior art cited under the provisions of section 301 of this title. The request must be in writing and must be accompanied by payment of a reexamination fee established by the Commissioner of Patents pursuant to the provisions of section 41 of this title. The request must set forth the pertinency and manner of applying cited prior art to every claim for which reexamination is requested. Unless the requesting person is the owner of the patent, the Commissioner promptly will send a copy of the request to the owner of record of the patent.
35 USC Sec. 135. Interferences
(a) Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, an interference may be declared and the Commissioner shall give notice of such declaration to the applicants, or applicant and patentee, as the case may be. ...
15 USC Sec. 1063. Opposition to registration
(a) Any person who believes that he would be damaged by the registration of a mark upon the principal register may, upon payment of the prescribed fee, file an opposition in the Patent and Trademark Office, stating the grounds therefor, within thirty days after the publication under subsection (a) of section 1062 of this title of the mark sought to be registered. Upon written request prior to the expiration of the thirty-day period, the time for filing opposition shall be extended for an additional thirty days, and further extensions of time for filing opposition may be granted by the Commissioner for good cause when requested prior to the expiration of an extension. The Commissioner shall notify the applicant of each extension of the time for filing opposition. An opposition may be amended under such conditions as may be prescribed by the Commissioner.
(b) Unless registration is successfully opposed -
(1) a mark entitled to registration on the
principal register based on an application filed under section 1051(a)
of this title or pursuant to section 1126 of this title shall be
registered in the Patent and Trademark Office, a certificate of
registration shall be issued, and notice of the registration shall be
published in the Official Gazette of the Patent and Trademark Office; or
(2) a notice of allowance shall be issued to
the applicant if the applicant applied for registration under section
1051(b) of this title.
Received on Thu Jul 23 1998 - 19:28:49 GMT
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