Intellectual Property (“IP”) – What is the difference between Patents, Trademarks and Copyrights?
Intellectual property, also known as IP, according to the World Intellectual Property Organization (WIPO) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected by most national laws, including the US, by patents, trademarks, copyrights and trade secrets. Below is a breakdown of these four mechanisms for protecting IP and how they differ:
A patent protects your invention through federal law giving you a monopoly to exclude others from practicing the invention, including the right to prevent others from making, using, selling and/or importing your invention in the US. Inventions are your creative ideas for new products (articles of manufacture), machines, processes, methods, compositions of matter, ornamentation on, or shape of, products, or new plants. An improvement on an existing product may also be patented. Utility patents protect the majority of these. To be patentable, your invention must be useful, novel and non-obvious. Design patents protect the ornamentation on, or shape of, devices. Plant patents protect new plant varieties. Utility patents give you an exclusive right or monopoly for twenty years from the date of filing. Design patents give you a monopoly for fourteen years from the date of issue, and prevent others from making the patented device with your ornamentation on them or made of your shape. As an illustrative example, a chair is a useful device. If you could obtain a utility patent on a chair with a seat and supporting legs, you could stop anyone from making a chair. That would be a utility patent and would be very powerful. If your chair had an unusual ornamental shape or seat design pattern, and obtained a design patent on it, you would be able to prevent others from making chairs with that shape or surface pattern, but they could still make other tables. Plant patents last for twenty years from the filing date of the patent application. Infringement of your patent allows you to obtain damages adequate to compensate for the infringement no less than a reasonable royalty plus interest and costs. If the infringement is willful, damages can potentially be enhanced to obtain treble damages plus attorney fees.
A trademark (or service mark for services) protects names, slogans, logos and other like marks through both federal law and common law, or state laws. Your name, slogan, logo, etc. that is used to identify your product or service to your prospective customers as the source of the goods and/or services that you are offering is the subject of trademark protection. Even your business name or website address is a trademark if you use it with your goods or services. There are both federal trademarks and state trademark registration systems. There are also common law trademarks that are not registered at either the federal or state level. Trademark protection is typically based on when you start using the mark on the goods and/or services. However, federal trademark applications can be filed even before you are using the trademark name, slogan, logo, etc. to reserve your trademark. These are called “Intent to Use” trademark applications. Federal and state trademarks must periodically be renewed. Trademark protections is valid forever as long as you continuously use the mark and keep the registration renewed. Federal trademarks must be renewed every ten years. If you no longer use the trademark, you lose your rights. Infringement of your trademark allows you to potentially obtain treble damages and attorney fees.
Copyright protection is for protecting your creative artistic expression, but only once it is set into a tangible form. For instance, you create and write a poem. There is no copyright unless the poem is recorded or written, because there is no tangible representation of your artistic expression. However, once you write, record, photograph, draw, or otherwise create a tangible record of your artistic expression, you automatically have copyright. That is, you are the only one who has the right to make or sell copies. Ideas cannot be copyrighted as useful ideas are the subject for patent protection. Examples of copyrightable materials are written words, such as in books, magazines, poems, songs; written music; performances of music; paintings and drawings; photographs, videos, architectural plans, website content and layouts, and computer software. Copyright lasts for 70 years plus the life of the creator (or last to die for multiple authors) for new works under current law. If the work is made for hire, then the term is the shorter of 95 years from publication or 120 years from creation. Copyright protection for works of authorship is automatically granted once put into tangible form. However, only once the work is registered with the Library of Congress does federal law provide you with the right to enforce your copyright. There is the possibility of obtaining statutory damages of up to $150,000.00, plus the possibility of being awarded attorney fees. Thus, it is very important to register your copyright as soon as practicable.
Finally, trade secret protection is another means of providing protection to ideas. However, the key word here is “secret” and protection is only provided for ideas that are actively kept secret. That is, you should have policies in place that prevent its disclosure. If the owner of a trade secret lets someone who has no need to know in on the secret, it is no longer protected. Trade secrets are most suitable to keep secret formulas or processes protected, i.e. think the formula for Coca-Cola. However, if it can easily be reverse engineered independently, it won’t remain protected for long.
f you are considering protecting your intellectual property, you should consult with an attorney of your choice. For more information, please visit www.patentattorneycharlotte.com or www.GWpatentattorney.com.