Do I need to register a trademark to have trademark rights?

No. Trademark rights in the United States arise from use in commerce. However, federal registration with the USPTO provides significant advantages including nationwide constructive notice, the right to use the registration symbol, and access to federal court.

Who owns the copyright on work created by an independent contractor?

Generally, the independent contractor owns the copyright unless there is a written assignment transferring ownership to the business. Businesses should ensure engagement agreements include a written copyright assignment for all commissioned creative work.

Intellectual Property Basics for Mississippi Businesses: Trademarks, Copyrights, and Patents | Lynch Law

Intellectual property is often one of the most valuable assets a business owns, yet many Mississippi business owners give it little attention until a problem arises—a competitor copies a brand name, an employee takes trade secrets to a rival, or a product design is replicated without permission. Understanding the basics of the three main categories of intellectual property protection—trademarks, copyrights, and patents—is the first step toward protecting the assets that differentiate your business.

Trademarks

A trademark is a word, phrase, symbol, design, or combination thereof that identifies and distinguishes the source of goods or services. Your business name, logo, product names, and slogans may all be protectable trademarks. Trademark rights in the United States arise from use in commerce—you do not need a federal registration to have trademark rights, although registration provides significant advantages.^[1]

State vs. Federal Registration

Mississippi allows state trademark registration through the Secretary of State's office under Miss. Code Ann. § 75-25-1 et seq. State registration provides notice of your claim within Mississippi and a legal presumption of ownership in the state. However, federal registration with the United States Patent and Trademark Office (USPTO) provides broader protection: nationwide constructive notice, the ability to bring suit in federal court, the right to use the ® symbol, and access to U.S. Customs enforcement against infringing imports.^[2]

For businesses that operate across state lines or online, federal registration is generally the better investment. The application process takes 8 to 12 months and costs $250 to $350 per class of goods or services.

Copyrights

Copyright protects original works of authorship—including literary works, software code, website content, photographs, marketing materials, and architectural designs—from the moment they are fixed in a tangible medium of expression. Registration with the U.S. Copyright Office is not required for protection, but it provides critical litigation advantages: the ability to seek statutory damages (up to $150,000 per work for willful infringement) and attorney fees, and the ability to file suit in federal court.^[3]

For businesses, the most common copyright issues involve ownership of works created by employees (generally owned by the employer under the "work for hire" doctrine) versus works created by independent contractors (generally owned by the contractor unless a written assignment exists). Businesses that commission website design, software development, marketing content, or other creative work from independent contractors should ensure that the engagement agreement includes a written assignment of copyright.

Patents

A patent grants the inventor the exclusive right to make, use, and sell an invention for a limited period—20 years from the filing date for utility patents, and 15 years from the grant date for design patents. Patents protect inventions that are novel, non-obvious, and useful, including processes, machines, manufactured articles, and compositions of matter.^[4]

The patent application process is complex, expensive, and time-consuming. Utility patent applications typically cost $10,000 to $30,000 or more in attorney and filing fees, and the examination process averages 2 to 3 years. Design patents are less expensive and faster. For many small businesses, the cost of patent protection is prohibitive, and trade secret protection (discussed in a forthcoming article on Mississippi's Uniform Trade Secrets Act) may be a more practical alternative.

Practical Steps for Mississippi Businesses

Business owners should take several practical steps to protect their intellectual property. First, conduct an IP audit: identify the trademarks, copyrights, trade secrets, and potentially patentable inventions that your business owns. Second, register your most important marks with the USPTO and your most important works with the Copyright Office. Third, ensure that all employment agreements and contractor agreements include appropriate IP assignment and confidentiality provisions. Fourth, implement internal policies to protect trade secrets—access controls, non-disclosure agreements, and employee exit procedures.

Intellectual property disputes can be expensive to litigate and devastating to lose. The cost of proactive protection is a fraction of the cost of enforcement after the fact. Our firm can help businesses evaluate their intellectual property exposure and implement appropriate protections.^[5]

References

^[1] 15 U.S.C. § 1051 et seq. (Lanham Act, governing federal trademark registration and protection).
^[2] Miss. Code Ann. § 75-25-1 et seq. (Mississippi trademark registration statute); 15 U.S.C. § 1072 (constructive notice of federal registration).
^[3] 17 U.S.C. § 101 et seq. (Copyright Act); 17 U.S.C. § 504(c) (statutory damages for copyright infringement).
^[4] 35 U.S.C. § 101 et seq. (Patent Act; requirements for patentability: novelty, non-obviousness, and utility).
^[5] See Outside General Counsel (discussing the firm's business advisory services, including intellectual property counseling).