Most people have never consulted with an intellectual property attorney, but still understand the most basic principle of intellectual property: that creations or inventions can be owned the same way that you might own a house or a baseball card collection. Although they are frequently bundled together under the term “IP,” there are actually several different types of intellectual property. The most prominent intellectual property types are “copyrights,” “patents,” and “trademarks.” This blog post provides a quick guide to understanding these different kinds of intellectual property.
Trademark Law
Trademarks are usually words, phrases, logos, or symbols used in connection with the advertising and sale of goods and services. The purpose of trademarks is to indicate the source of those goods and services. Trademarks are extremely valuable assets to any business because they are the embodiment of that business in the minds of consumers. They also help businesses to distinguish their products and services from those of competitors.
Here are just a few examples of well-known marks: SAMSUNG, ARBY’S, PETSMART, and ITUNES. Also, think of the competitions between COKE and PEPSI, IPHONE and ANDROID, or MCDONALD’S and BURGER KING. You may have a strong preference for some of these brands over the other. You associate the qualities and characteristics of each product/service with its trademark. One thing that sets trademarks apart from copyrights or patents is that trademark rights can theoretically last forever, so long as use of the trademark continues. Federal trademark rights can last as long as the trademark is being used, so long as any required renewal filings are made on time.
Copyright Law
Copyrights are different from trademarks in that they protect creative works. Or, in legalese, they protect: “original works of authorship fixed in a tangible medium of expression.” This is the type of protection that covers the content of movies, books, songs, artwork, websites, photos, and even choreography. Owning a copyright gives you several exclusive rights to your content. Only the copyright owner can distribute or reproduce copies of the work, perform or display the work publicly. They also have the exclusive right to create works that are considered to be derivative (meaning the new work is based on the copyrighted material, such as creating a movie version of a book).
Copyrights eventually do expire, at which point the copyrighted material goes into the “public domain.” However, the term of protection has been extended multiple times. You may have heard that the Mickey Mouse film “Steamboat Willie” has only recently become public domain, despite the fact that it was created in 1928. That demonstrates how long the copyright term really is.
Although creation of a work automatically gives you ownership of the copyright, those rights are somewhat flimsy on their own. Without registration of the copyright, you cannot file an infringement lawsuit. Copyright registration can also give you access to statutory damages, should the need to file an infringement lawsuit very arise. Therefore, you may want to register your most commercially valuable works.
Patent Law
Patents protect more practical forms of intellectual property, such as inventions. The basic requirements of a patent include novelty (or newness), usefulness, and non-obviousness. When someone wants to acquire a patent for their invention, they are essentially trying to gain exclusive rights to use, make, distribute, and sell the invention. In exchange for these rights, they are disclosing what the invention is and how it works. That disclosure on the inventor’s part is significant, because the term of the patent is limited. The invention it covers will fall into the public domain after the term ends. The term of a patent is also much shorter than the copyright term.
As you can see, there are significant differences between trademarks, copyrights, and patents. They each cover different subject matter, give different rights to their owner, and give protection for different lengths of time.
Are You Unsure About What Kind of Intellectual Property Protection You Need?
If you need any help determining which type of intellectual property you are dealing with, please feel free to call me at (480) 360-3499, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.
