Intellectual Property Newsletter
Patent, Trademark & Copyright Protection
Patents, trademarks and copyrights are all forms of intellectual property over which the owner has certain exclusive use and rights. There are distinct laws which function to protect each of these types of intellectual property.
Generally, patents protect “inventions,” granting the inventor the right to exclude others from making, using or selling the invention within the United States. Trademarks are “words, names, symbols or devices” that are used with goods or services to identify their source and distinguish them from other similar goods or services. Copyrights protect “original works of authorship” such as literary, dramatic, musical, artistic and other intellectual works from being reproduced without the author’s consent.
An inventor may apply with the U.S. Patent and Trademark Office (USPTO) to grant a patent for their invention or discovery. If granted, the inventor has a non-renewable right, for 20 years, to exclude all others from making, using, offering for sale, selling or importing the invention into the U.S. Once the 20 years has passed, the patent expires into the public domain, for anyone to use. A U.S. patent is only effective in the U.S., its territories and its possessions.
A patent application must include a detailed description of how to use the invention and must define the scope by identifying the exact subject matter of the patent. In the U.S., when two individuals apply for a patent on the same invention, the “first-to-invent” is awarded the patent. In addition, in order to receive a patent, the invention or discovery must be novel, useful and non-obvious in nature.
There are typically four categories of “utility” inventions that may be covered by a patent which include machines, human made products, compositions of matter and processing methods. Alternatively, a “design” patent may be issued for a new and original design for an article of manufacture. Finally, “plant” patents are reserved for the invention, discovery or asexual reproducing of a distinct new variety of plant. Patent laws exist to protect such new and useful inventions from being used by anyone else.
A trademark may be a word, logo or other symbol used by a business to denote the source of a particular good or service. The mark is also used to distinguish the goods or services from others in the marketplace. However, trademarks are not used to prevent others from making or selling the same goods or services. Rather, they are used to prevent competitors from using a confusingly similar mark to market similar goods or services. Thus, unlike patents (or copyrights) a trademark is not enforceable against everyone, only against certain unauthorized misuse.
Interstate sellers of goods or services may apply with the USPTO to federally register their trademark. A trademark may be renewed indefinitely, but must be actively used by the mark’s owner in order to maintain exclusive rights in its use. While federal registration offers the strongest protection of trademarks, it is not necessarily required. Qualified trademarks that are already in use in commerce may also be protected under the federal or applicable state unfair competition laws.
All trademark laws function both to enable consumers to identify the source of goods and services and to help businesses profit through advertising and marketing based upon the goodwill of their mark.
A copyright is a form of protection for authors of “original works of authorship.” Such works can include architectural designs, software, graphic arts, motion pictures and sound recording. However, a copyright protects the form of expression itself rather than the subject matter of the writing, the idea or the fact of the expression. For example, while the name and image of a Mickey Mouse cartoon may be trademarked, it is the cartoon itself which may be copyrighted.
Once a literary, musical or other type of artistic work is created, the author may seek a copyright with the Copyrights Office of the Library of Congress. A copyright is automatic for works which are original and in a secured in a fixed medium of expression such as a drawing, sheet music, videotape or letter. Thus, the work does not need to be registered to be copyrighted, but registration may offer more protection as well as statutory damages and attorney’s fees in a successful infringement action. Like patents, copyrights “expire” after a certain statutory number of years.
A copyrighted work provides its author with the exclusive right to reproduce the work. The author of a copyrighted work is also the only individual who may prepare derivative works, distribute copies or perform, display or license the work publicly. However, there are limited exceptions to the exclusivity of a copyright. For example, certain types of copying may be considered to be a permissible “fair use” of a copyrighted work, such as a book review of an original work.
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