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7.2 State Intellectual Property Considerations

7.2.1 Patents
This area is governed exclusively by federal law, Title 35, U.S.C. et al.

7.2.2 Copyright Law

This area is governed exclusively by federal law, Title 17, U.S.C.
7.2.3 State of Florida Trademarks

This area is governed by state law, Florida Statutes, Title XXXIII, Chapter 495, and federal law.

(a) In General. A trademark is often used by a manufacturer to identify its
merchandise and to distinguish its merchandise from items manufactured by
others. A Florida trademark can be a word, name, symbol, or device or any
combination thereof used by a person to identify and distinguish the goods or
services of such person, including a unique product, from those
manufactured or sold by others, and to indicate the source of the goods,
even if unknown.

A business that sells services rather than goods may also use a service mark
to distinguish its services. Generally, service marks and trademarks receive
the same legal treatment. Common law rights in marks used, but not
registered, are preserved by Florida statute.
(b) Selection of Trademark. See discussion above under Section 7.1.3.(b).

(c) Advantages of Trademark Registration. Under the trademark laws of Florida,
the principal method of establishing rights in a trademark is actual use of the
trademark. “Registration” of a trademark is not legally required but can
provide certain advantages over federal registration. In particular, an owner of
a trademark registered in Florida may receive attorney’s fees if successful in a
trademark infringement action “according to the circumstances of the case”
as determined by the court. Such threshold is a lower than the federal U.S.
standard of an “exceptional case” in the Lanham Act. Additionally, the court
has discretion to award damages up to three times actual damages and, if
the amount based on profits is inadequate or excessive, the court may award
damages “according to the circumstance of the case.” Thus, much latitude is
available to the court.

(d) State Registration Application Process. An application for registration to the
State of Florida may be made by any individual, firm, partnership, corporation,
union, association, or other organization. Applications for Florida trademarks
are submitted to the Florida Department of State, Division of Corporations (the
“Department”), using the required application form available on the
Department’s website. The application must identify the name and business
address of the person applying for such registration, the mark and the goods
with which the mark is used or is proposed to be used, the date of first use
when the goods are sold or transported in Florida, and the manner in which it
is used. The application must also include a statement that the applicant is

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