TWO PERSPECTIVES ON THE
Publication marks another distinct difference between the typical copyright registration procedure and boat hull copyright. Boat hull design protection, like trademark, is announced by publication.
Unlike conventional copyright provisions, Chapter 13 contains language, which tracks, in large part, the Trademark Act's cancellation provisions. Section 1313(c) provides that any person who believes he or she is or will be damaged by a registration may apply to the Administrator to cancel the registration on the ground that the design is not subject to protection, stating the reasons for the request. The cancellation process then takes on a Trademark Cancellation flavor except that, under the Boat Hull Act, the cost of the cancellation shall be borne by the non-prevailing party; a sanction which is not mandatory with trademark.
On The Patent Side
In view of the Vessel Hull Design Act, this firm will elicit the necessary information regarding a vessel hull copyright filing as part of our initial patent interview when the subject matter of the patent application concerns boats and hulls. Also, the firm will suggest that the inventor build a hull as soon as possible.
The significant distinction between a patent application and the copyright application is that a patent application does not require a hull to be in existence, as does the copyright registration. Patent law, 35 USC 101, does require that the patent be for a new and useful device. However, the, "usefulness," may be theoretical, if supported by calculations and/or drawings.
If the patent application is submitted to the U.S. Patent & Trademark Office (PTO) before a hull incorporating the invention is built, there would be no filing for copyright protection. But, upon building a hull incorporating the invention, our law firm would recommend filing for copyright protection in the Copyright Office, Library of Congress. In this vein, it is not clear that the hull has to be the full size contemplated by the originator. Could the actual hull be a model?
A major benefit of this strategy would come into play if the inventor would build a hull and then file for a patent. In this situation, a copyright registration could be filed simultaneously with the patent application. The PTO has a backlog of at least nine (9) months to a year before the patent application receives an initial review. The total patenting process may take at least 18-months. In the meantime, the inventor may enjoy the legal protection of copyright registration. In the long run, the 20-year patent protection would extend beyond the 10-years protection of the copyright registration.