What are Trademarks, Copyrights and Patents?
What are the differences between Trademarks, Copyrights and Patents?
PROTECT YOUR INVESTMENT AND YOUR INTELLECTUAL PROPERTY
Intellectual property (for example, trademarks, written materials, recipes, etc.) is often one of the most valuable asset of a business and the acquisition, transfer, license or right to use such intellectual property is often an essential element in many business transactions. Recently, lenders, investors and financial institutions have considered and requested intellectual property assets as collateral to secure company obligations and financing.
Intellectual property assets may be protected as patents, copyrights, trademarks or trade secrets. In addition, intellectual property may be protected based on theories and principles of unfair competition. The applicability and availability of such protection depends upon the specifics of the intellectual property and the type of protection desired. Also one or more than one form of protection may be applicable and available to certain intellectual property. For example, patent, copyright and trade secret protection is often applicable to software programs.
WHAT IS A TRADEMARK?
What is a Trademark? Typically, a trademark is a name or word capable of distinguishing goods or services of one source from those of other sources. Other examples of trademarks include: a symbol, logo, graphic design, phrase, series of letters, set of numbers, three dimensional object, fragrance, distinctive design of container, series of sounds, a telephone number, distinctive combination of colors, etc. Function is not protected by trademark (See Patents below for info about ideas and function).
"Why hire a Trademark Lawyer?" There are a lot of "gray areas" within the Trademark law arena. Also, it often takes sophisticated legal strategies and arguments to move a USPTO Trademark Application on to Registration. Businesses should have an experienced, qualified, Trademark Lawyer on board, to guide them through the process of (1) determining whether or not the mark they want to use is available for use (preferably before investing in a mark and before branding), and (2) navigating their Trademark through the USPTO Trademark Registration process.
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WHAT IS A TRADE SECRET?
"What is a Trade Secret?"; Generally. Trade secrets are protected by civil and criminal law. A trade secret can be any formula, pattern, device or compilation of information or other know-how that is used in a business, and gives that business an opportunity to obtain an advantage over competitors who do not have or use that secret. Some examples of trade secrets include: confidential business information such as new product lines or marketing initiatives and customer lists, formulae for chemical compounds, processes of manufacture, patterns for machines or other devices.
Click here to LEARN MORE ABOUT TRADE SECRETS .
WHAT IS A COPYRIGHT?
Federal law governs most copyrights, specifically the 1976 Copyright Act and its amendments. Copyrights are exclusive rights to original works of authorship, that is, the EXPRESSION of an idea, not the idea itself, referred to in this article as "Works."
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"What is a copyright?": Duration of Copyrights
The duration of copyright protection depends upon details regarding the author(s), the date upon which the work was created and the date of registration with the US Copyright Office. For works created after January 1, 1978 the following terms apply. These terms may not be renewed or extended.
A work of an individual author is protected for the life of the author plus fifty years.
Joint works prepared by two or more authors are protected for the life of the last surviving author plus fifty years.
Anonymous works, pseudonymous works and works made for hire are protected for 75 years from the date of publication or 100 years after creation, whichever is shorter.
Also, restoration of copyright protection is available for certain works of foreign origin that have fallen into the public domain in the United States, but are still subject to valid copyright in their source countries.
"What is a copyright?"; Formalities
Since 1989, federal law has not required the formalities of notice or registration to establish copyrights. However, it is still advisable to apply a copyright notice to each copy of a Work and to register copyrights in a Work.
The copyright notices may be made via use of the word "copyright" or the copyright symbol "©"; the year of first publication; and the copyright owner's name. Notice can prevent inadvertent infringement, deter deliberate infringement and preclude the innocent infringement defense.
"WHAT IS A COPYRIGHT?"; THE VISUAL ARTS: MORAL RIGHTS
The 1990 Visual Artists Rights Amendment to the Copyright Act grants to the author of a work of visual art the rights of attribution and integrity for the life of the author. This right applies to no other type of copyrightable Work.
Right of Attribution: allows an author to claim authorship of a Work and to prevent the use of his or her name to be attributed to Visual Art Work not created by that author.
Right of Integrity: This right allows an author to prevent the use of his or her name as author of the Visual Art Work in the event the Work is distorted, mutilated or modified, where such attribution would prejudice the author's honor or reputation.
Although partially preempted by the Visual Artists Rights Amendment to the Copyright Act, the Massachusetts Art Preservation law, provides protection for rights of attribution and integrity in "fine art" during the author's lifetime and for fifty years after the death of the author.
"What is a copyright?": International Copyright Conventions
The United States is a party to the Universal Copyright Convention ("UCC"), the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs") and the Agreement Establishing the World Trade Organization ("WTO").
Click here for Copyright Registration Checklist.
Michelle DelMar, Esq., can help you register your trademark or copyright and protect your trade secrets.
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