Trademarks, Copyrights, Patents, and Trade Secrets
Intellectual property is a property that is the result of one’s creative thought process, as distinguished from property that is tangible in nature such as real estate or personal property. The law of intellectual property consists of issues dealing with trademarks, copyrights, patents, and trade secrets. This article explains the four basic areas of intellectual property law.
Trademark Protection to Identify and Distinguish Goods
The law of trademark covers both trademarks and service marks. According to 15 U.S.C. §1127, the term trademark is any word, name, symbol or device used by a person to distinguish his or her goods or products from those manufactured or sold by others. Similarly, a service mark is used to identify and distinguish a person’s services from those offered by others.
According to Deborah E. Bouchoux, author of Business Organizations for Paralegals, trademarks may consist of slogans, designs, sounds, colors, and even fragrances. Marks that merely describe a product, such as “fluffy” or “zesty,” will not be accepted for registration by the U.S. Patent and Trademark Office (PTO). An exception exists for descriptive marks that have achieved a secondary meaning such that the mark is readily associated with the source of the goods.
One need not register a mark with the PTO in order to acquire trademark rights. Nevertheless, as Bouchoux explains, “registration with the PTO does afford a number of advantages to an owner, including the right to bring an action for infringement in federal court.” Trademark protection, unlike protection given to copyrights and patents, does not necessarily expire.
Copyright Protection for the Original Work of Authors, Artists, and Musicians
Copyright protection arises from the Patent and Copyright Clause of the U.S. Constitution. Copyright protects the works of authors, artists and musicians to ensure that they have the exclusive rights to reproduce, distribute, display and perform their works. The law of copyright has evolved with technology to encompass such works as software programs.
Copyright protects original works that are fixed in a tangible form of expression which can be “perceived, reproduced, or otherwise communicated.” Books, musical compositions, software programs, and sculptures can be copyrighted, for example, but ideas, processes or systems cannot. Generally speaking, the copyright term for works created after 1977 by individuals is the life of the author plus 70 years. The term for corporate copyright owners is 95 years from publication or 120 years from the creation of the work.
Patents Prevent Others from Making, Selling or Using One’s Invention
According to Bouchoux, a patent is a grant by the federal government to exclude others from making, using, or selling one’s invention. In order to obtain a patent, one’s invention must be novel, useful and non-obvious. There are three types of patents granted by the PTO:
- Utility patents are granted for machines, processes, manufacturing methods, chemical compositions, biotechnology and the like. Utility patents are the most common patents.
- Design patents protect the creation of a new, original, ornamental appearance for a useful product. An example might be a new shape for a glass container.
- Plant patents protect certain types of plants, such as flowers and fruits.
Utility patents and plant patents last for 20 years, while design patents have a term of 14 years.
A trade secret is any valuable and closely guarded information that gives its owner some type of competitive advantage. A trade secret may be just about anything, including recipes, customer lists or marketing plans. The owner of the information must take reasonable steps to protect the information in order to claim the protection. No federal registration is afforded for trade secrets, but if they are properly protected, trade secrets may be kept indefinitely.