Intellectual Property Law

Trademarks, Copyrights, Patents, and Trade Secrets

The law of intellectual property encompasses four basic property rights: 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.


Trade Secrets

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.

Do I Need a Copyright?

Register Copyright to Book, Song, Invention for Maximum Protection

Artists, inventors, and innovative business owners who want to make money from their work should seek advice on protecting valuable assets.

In the U.S. Constitution, the authors believed that “To promote the Progress of Science and useful Arts” they would secure for innovative citizens the right to benefit from their work. Therefore, in Article 1, Section 8, they gave to authors and inventors the guarantee that they could secure for limited times the “exclusive Right to their respective Writings and Discoveries.”

At first, however, there were no administrative procedures to register or enforce this right. President George Washington addressed Congress in 1790 and encouraged the development of legal infrastructure. He and others believed that the protection of pursuits in science and literature would strengthen the country. Since then, the federal government has enacted legislation to help creators and innovators protect and make money from their work.

Common Law Copyright

In the United States, a writer, inventor, business owner, or other innovators have a common law right to protection. Any person may recover for actual damages incurred due to another party using a book, song, business model, or even a website as though it belonged to the taker.

However, if the originator of the material had not registered his intellectual property, he cannot recover more than the actual damages he incurred. These damages are often difficult to prove. What did it actually cost the artists, inventor, or business person to develop his book, song, logo, store design, or web content?

More importantly for the originator of the material who hoped to make money from his property, if his material is not registered or patented he may lose his ability to make money on the property in the future. If he has not sought to place further legal protections on the use of the property in the United States beyond the basic level, all money-making potential may be lost.

Internet and Global Business

In today’s world, every business is global. Especially if artistic works or innovative designs are available over the Internet, they can be ripped off, pirated, and used by people anywhere.

Many businesses today are operated largely or entirely online. The business owner may live in Williamsburg, Virginia. He may be communicating over the telephone and via email. He may be researching online and designing and building his website using a variety of database and software applications. But the product he wants to sell may be made in Jamaica or Mexico. His inventory may be located in a warehouse in Virginia Beach. His customer service may be provided by a center in India and his marketing by an agency in New York. An entrepreneur who operates a small, well-planned, sustainable Virginia business from his desk in Williamsburg is truly a global business person.

A global business person needs to copyright the book he wrote about his business success, patent his products or sustainable services, trademark his logo and signature product packaging, and protect his trade secrets, which may include his customer list, business plan, green marketing function, and other elements that define his business as unique.

Registration of Copyright

An author or artist doesn’t necessarily need an attorney in order to register a copyright. It is a fairly simple process that can be completed online. Businesses around the world who hope to profit from sales in the United States should register their property with the U.S. Copyright Office. A number of pages and publications are available on the site to answer further questions.

Owners of web businesses can and should register websites to avoid unscrupulous taking of photos and content for use by another business.

Intellectual Properties Help

Intellectual properties legal actions are usually conducted in federal level courts, not state courts. Therefore, it is best to look for legal help used to taking lawsuits to federal court, should the need arise.

Intellectual properties attorneys help artists and inventors examine their property for strengths and assets that can be protected by law. They advise a property owner on the types of legal protection that are available.