Although I am well versed in the area of intellectual property (IP), it has come to my attention that many are not. This can be a problem when individuals are concerned with protecting their rights, and when trying to avoid infringing the rights of others. This article is meant to be a very brief overview of what each of the three main areas of IP law deals with. Copyrights, Trademarks, and Patents are each a huge body of law on their own. In addition to the basic rules, there are numerous sub-rules, and exceptions.
The purpose here is to guide novices in to what area of the law they are dealing with, and a place to start asking questions. Let me say up front a general rule; You cannot protect mere ideas. It is the expression of ideas that can be protected.
Copyrights are all about protecting original works of authorship. For a work to be copyrightable, it must fixed in a tangible medium. This means that it cannot be just an idea in your head. Next, the work must be original, this is obvious, as you cannot simply fix someone else’s copyright in a different medium and try to protect it. The basic idea here is that when you want to express an idea in a particular way, you can get copyright protection for that expression. No one can copyright the story of “the underdog protagonist.” This is a mere idea. It is the particular way you express the idea which is copyrightable.
In addition to owning your original work, you also get the right to display, profit from, distribute, and make derivatives from your work. Making a little change to someone else’s copyright may give you the copyright in that change, but that still means you are infringing their work. Further, as copyright involves the right to distribute, even if you are giving away someone’s work for free, you could still potentially be infringing upon their copyrighted work.
Copyright protection is automatic once you have fixed it in a tangible form. However, you get more protection, and proof of your copyright when you register with the US Copyright Office. Copyrights don’t last forever. If you register a copyright, it is protected for the life of the author plus 75 years. After that the work is said to be in the public domain, and free to use. These are the basics of copyright law. Ever instance of trying to protect an original work of authorship is different, and always research and ask questions when necessary.
For some people, trademark law is the most abstract. It is often misunderstood, but very simple in context. Trademark law is all about marks of origination. Meaning, there is an association with the mark to a place of origin. When you see the mark, you think it came from a particular place. Trademarks come in many forms, from words, to logos, to mere colors. The related term “servicemark” is essentially the same thing, but refers to a service rather than an item.
For a trademark to have protection it must not be generic or merely descriptive. The less the mark is associated with a product, the better it can be. And of course, if a trademark is an original work of authorship, it can be copyrighted as well. Take the name “Apple” for computers. When you see the Apple logo, you know what company it came from, but the word “apple” is not original enough to be copyrighted. Thus, “Apple” for computers can be trademarked because it inherently has nothing to do with computers, but cannot be copyrighted.
Trademark protection is very limited, and can be lost. Like copyrights, trademarks do not have to be registered to be protected, but it is highly recommended that they are. Trademark protection is limited, and only applies to the narrow industry or category it is used for. Thus, if you have a trademark for clothing, it does not mean the same mark will be protected for food distribution. Here it is important not to be confused with the copyrightability of a logo. If you have a copyrighted logo, no one can use it except you, because the logo itself, without applying to anything is protected. If you use a name however that is a common name or term, then you must be specific with what it is referring to.
Trademarks again, are about consumer association. Owners of trademarks work very hard to maintain them and keep them from becoming generic. Take some popular terms that have suffered from genericide; Frisbee, Kleenex, Google, Thermos. All these terms started as being strong trademarks. The problem was that they become so synonymous with a product or service, that they become a noun or verb unto themselves. Trademark differentiation is very important in trying to protect a trademark from becoming generic.
Visit the US Patent and Trademark office here.
Patent protection is by far the most tedious and expensive of the IP protections. Patents protect inventions, or new ways to do things. There are a number of methods, processes, inventions, business process, etc… that can be protected if various requirements are met. When it comes to patent litigation, the devil is always in the details.
The basis components of a patent are that you have a novel way of doing something that is not obvious to people in the relevant industry. Sometimes this is very obvious, and other times there is huge litigation about whether the invention is obvious or not. Sometimes if there is a trend in the industry, and a process would be inevitable eventually it cannot be protected. To have patent protection you must register the patent. Once you submit the application you are protected even though it can take a very long time for the patent office to issue your patent number. Once you get a valid patent it will remain protected for 20 years. After that it goes into the public domain.
Patents are worth getting if you have an invention or novel process you want to protect. You would surprised at the types of things people have attempted (and succeeded) at patenting. One of my favorites was something similar to “method for exercising your cat,” which essentially involved using a laser pointer to attract your cat’s attention and exercise the cat while it chased the red dot around. This was an instance were a patent was issued, but later it failed due to the obvious factor. The patent examiners at the USPTO are not always the last word.
For more information on patents please visit the US Patent and Trademark office.
Again, this brief guide serves only to discuss the very basic issues involved in these three forms of intellectual property. Before you intend to formally protect or possible use someone else’s work, it is essentially that you consult with an attorney, or at the very least, try to get the permission of the owner.