Intellectual Property

Crash Course on Intellectual Property Law

Intellectual property law is broken down into four main areas: trademark, copyright, trade secret, and patent.

This post provides a basic explanation of each area of intellectual property, and simple steps you can take to protect your intellectual property:

Trademarks

Trademarks and service marks are protected under state and federal law. Logos, company names, product names, and slogans are some of the common marks that are protected under the Lanham Act (the federal statute governing trademarks). There are two primary categories of trademarks: plain-text marks (or word marks) and design marks. An example of a plain-text mark is “Nike”, and an example of a design mark is the Nike Swoosh.

 

What rights do trademark holders have?

A trademark holder has the right to exclude others from using their mark. The two main causes of action are likelihood of confusion, and dilution. In very simple terms, “likelihood of confusion” (or consumer confusion) exists where the average consumer would likely be confused between two marks and the source of the goods or services being advertised by those marks. In other words, a consumer would look at two trademarks and believe they belong to the same source because they are so similar. “Dilution” means that another company’s use of the trademark impacts the trademark holder’s brand or reputation in some negative way.

There are very simple steps you can take to protect your trademarks. We generally recommend applying to register your trademark at the federal level, which provides you with the broadest protection afforded under U.S. trademark laws.

Copyrights

The subject matter protectable by copyright registration spans a broad range of literary and artistic expression, including literature, song, dance, sculpture, graphics, painting, photography, sound, movies, and computer programming. Ideas alone are not eligible for copyright protection, but the author’s particular expression of an idea is protectable. That is, once the idea is “reduced to a tangible medium” (this is fancy lawyer speak for taking the idea from your head to something tangible, e.g. written on a piece of paper, typed onto a screen, painted on a canvas, etc.), it becomes eligible for copyright protection. Examples of a copyrights range from smartphone and computer applications to product manuals, labeling, and business presentations.

What rights do copyright authors have?

When you create a copyright, you have the exclusive right to (1) make copies, (2) prepare derivative works, (3) sell and distribute the original and all copies or derivative works, (4) perform and display the work, and (5) the moral rights, including attribution rights and the right to prevent distortion. As is the case with trademarks (more below), certain rights under the laws surrounding copyrights are automatic and do not require the author to apply for copyright registration to receive those rights. However, it is generally best to apply to register your copyrighted works with the U.S. Copyright Office, which provides for heightened protection of your copyrights and the potential for statutory damages.

Like most laws, these copyright protections are subject to some exceptions. For instance, the copyright statute allows for the “fair use” of copyrighted material. Examples of fair use include among others criticism, news reporting, and scholarship.

Trade Secret Law

Unlike other types of intellectual property, trade secret law is primarily governed by state law. Under Washington state law, a “trade secret” is information that:

Protecting Trade Secrets
  • Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
  • Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Common examples of trade secrets include research and development information, product designs, formulas, recipes, and internal business methods or processes.

What rights do you have under trade secret law?

A trade secret owner has the right to prevent the use of the trade secret if it was acquired by “improper means.” The basic idea is that if someone steals your trade secret, you may be entitled to take the following remedies: (1) stopping them from continuing use of the trade secret, (2) receiving royalty payments that resulted from their use of your trade secret, and (3) damages for loss and unjust enrichment.

Generally the first step in protecting trade secrets is identifying what your company’s trade secrets are and putting in place processes and mechanisms for ensuring those trade secrets remain secret and do not fall into the wrong hands.

Patents

Thomas Edison patent on lightbulbUnder federal law, the categories of patentable inventions include: “any process, machine, manufacture, composition of matter, or improvement thereof.” A typical example of something that is patentable is an invention, or a product or process that provides for a new way of doing something or provides for new technology for solving a problem. For example, when Thomas Edison invented the light bulb, he patented that invention.

What rights do you get when you register a patent?

A patent registration grants the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for 20 years from the date the patent application is filed. If you’ve created a new invention or way of solving a problem, you should contact a patent attorney to discuss the first steps you can take to protect that invention, which likely includes exploring filing for a patent registration with the U.S. Patent and Trademark Office (USPTO).

Photo: takomabibelot | Flickr

        


Gavin Johnson

Gavin enjoys craft beer and is learning the art of brewing.


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