Of Patents, Trademarks and Copyrights

by Sands Anderson PC
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Entrepreneurs often know they need to protect their intellectual property, but often they don’t understand what kind of intangible asset can be protected and under what law.

Patents:

Patents protect devices, processes, article of manufacture or composition of matter.  The inventor basically has a monopoly for approximately 20 years from the date of filing to make, use, distribute or sell the invention.  To get patent protection, the invention must be useful, novel  and non-obvious; it may not be just an idea, theory, or other unapplied concept, a natural phenomenon, a pure algorithm or a purely mental act.

You don’t necessarily need a patent to make and sell a product, and getting one is time-consuming and expensive. If your business model will be based on a new way of doing something, it may be beneficial to obtain patent protection and prevent your competitors from doing it your way.

Trademarks:

A trademark is a brand name or a symbol that identifies your company as the source for a particular good or service.  Trademarks can be words, symbols, logos, slogans, sounds, fragrances, colors or even product or building designs.  A service mark  identifies and distinguishes the source of a service rather than goods. “Trademark” is often used to refer to both trademarks and service marks.

A strong trademark allows a company to build goodwill and brand reputation for its goods or services.  Trademarks promise consumers a particular level of quality and help consumers decide which company to buy from. Trademark owners can prevent competitors from using similar trademarks that are likely to confuse consumers.

Trademarks can be registered at the state or federal level, but companies also get some protections in their local area just from using the trademark.  Registrations bring additional benefits and stronger protections in case of infringement.  Trademarks last as long as you are using the trademark in commerce, although registrations require filings at various times to remain in effect.

For most businesses, their business name, logos and slogans are the trademarks they wish to protect.

Copyrights:

Copyright protects original works of authorship the moment they are fixed in some tangible medium: paper, canvas, hard drive, memory card, disk, etc.  Copyright generally attaches to literary compositions, art, photos, sculpture, dramatic works, song lyrics and music, performances of musical compositions, audio-visual works, choreography and architectural works.  Copyrights generally do not apply to factual information, the idea for a plot for a novel, slogans, forms, or the title to a song, television show, book, or movie (although those might be protected through trademark law).

Copyright owners have the exclusive rights to copy, distribute, display, perform and make derivative works of the copyrighted work.  For individually created works created since 1978, the copyright lasts the life of the author plus 70 years.

Copyright is not just for novelists, artists or musicians.  “Main Street” businesses may run into copyright problems in the following instances:

  • Playing radios or other “background” music may require licenses from ASCAP or BMI.
  • Playing television shows to groups  may require special commercial licenses from satellite or cable companies.
  • Hiring contractors to develop a website, logo or advertising material generally requires having the work product assigned to your company.
  • Getting pictures or other materials from third-party web sites is copyright infringement, unless the site specifically claims the images are free, or you get permission or a license.

Businesses should identify their intellectual property assets early, and protect them as soon as possible.  For more information, contact an Intellectual Property Lawyer

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