It can reasonably be said that every business person and legal practitioner should have at least a basic understanding of the essential concepts of intellectual property law.
Understanding the differences between patents, trademarks, and copyrights and how rights can be gained -- and lost -- in relation to each can be critical to the protection of one's own interests and the interests of a practitioner's clients.
Set forth below is a basic summary of each form of intellectual property. However, since certain actions and failures to act can result in potentially irremediable prejudice to one's rights, it is imperative that the reader consult with appropriate legal personnel, whether that be the O'Connell Law Office or another intellectual property office, to ensure that any action that is taken or not taken will not result in inadvertent prejudice to rights and properties that might otherwise be available. In reviewing this material and in contemplating how to go forward, please bear in mind that the reader can contact the O'Connell Law Office at any time. There is no fee for an initial consultation.
PATENTS
A U.S. Patent for an invention is a grant of property rights by the U.S. Government through the U.S. Patent and Trademark Office. The owner of a patent has the right to exclude others from making, using, selling, or importing the invention in the United States and the territories and possessions of the United States. Utility patents that expired prior to June 8, 1995 were subject to a patent term of 17 years from the patent's issue date. Patents not yet expired as of June 8, 1995 and patents that issued from applications pending before June 8, 1995 had a term of 17 years from the date of issue or 20 years from their earliest effective filing date, whichever is longer. Patents filed on or after June 8, 1995 are subject to a term of 20 years from their earliest effective filing date. A design patent term is 14 or 15 years from the patent grant, depending on when the patent was granted.
Terms such as "Patent Pending" are used to inform the public that an application for a patent has been filed. Patent protection does not start until the actual grant of a patent. Falsely marking an article as patented or patent pending is illegal and subject to penalty.
TRADEMARKS
A trademark can comprise any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from the services provided by others, and to indicate the source of the services. The terms "trademark" and "mark" are commonly used to refer to both trademarks and service marks.
When filing an application for federal trademark registration, an applicant must identify the goods or services to which the mark is applied with particularity according to the Nice Classification system, which divides goods and services into 45 trademark classes.
Federal trademark registration has several benefits including constructive notice of the trademark owner's rights, evidence of ownership, and federal court jurisdiction. Registration can be used as a basis for obtaining registration in foreign countries. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.
COPYRIGHTS
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. Copyright protects the form of expression rather than the underlying idea. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description. It would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
