Many small businesses have special logos, have developed software or original written material, and/or have certain unique processes for their business. Such intellectual properties are often left unprotected by businesses and, thus, often stolen: this article provides an overview of the types of intellectual properties that need protection and how to protect them.
Types of Intellectual Property Protection
Three types of intellectual property protection cover most intellectual property: trademarks, patents and copyrights. The United States Patent and Trademark Office (USPTO) handle both trademarks and patents while copyrights are handled by the Copyright Office (a division of the Library of Congress).
What Is a Patent?
A patent for an invention or unique process is the grant of a property right to the inventor or company where the product or process was developed. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
What Is a Trademark or Servicemark?
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
The USPTO website at http://www.uspto.gov/main/trademarks.htm provides a wide variety of information about trademarks and offers electronic filing of trademark applications and other trademark documents. The Trademark Electronic Business Center contains all the information needed for the entire registration process.
What Is a Copyright?
A copyright provides protection to the authors or owners of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works such as training materials, manuals, website content, and white papers, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or recordings of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying that unique description; it would not prevent others from writing a description of their own or from making and using the machine.
Some additional differences between a copyright and a trademark are as follows:
1. The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers: a) works of art (2 or 3 dimensional), b) photos, pictures, graphic designs, drawings and other forms of images; c) songs, music and sound recordings of all kinds; d) books, manuscripts, publications and other written works; and e) plays, movies, shows, and other performance arts.
2. The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services.
3. On occasions, both copyright and trademark protection are desirable with respect to the same business endeavor. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement's text and graphics, as published in a particular vehicle, will be covered by copyright - but the copyright will not protect the slogan as such. The slogan may be protected by trademark law, but the trademark will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration.
4. If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name, but rather complete “works.”
5. Whether an image should be protected by trademark or copyright law depends on whether or not its use is intended to identify the source of goods or services. If an image is used only temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo.
Editor's note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
