12.8.2010

The Differences Between Patents, Trademarks and Copyrights

The average person has a great deal of confusion about the difference between patents, trademarks and copyrights. Each of these protect a valuable asset of an individual or business.

‘Trademarks” are logos, names or symbols that are used on products. “Service marks” are logos, names or symbols that are used on services. These marks are used by the company to distinguish their product or service from their competitor’s. The purpose of trademark law is to protect unfair competition and avoid confusion in the marketplace. Trademarks protect a company’s goodwill that is gained when customers associate a mark with that company’s product or service. For example, Toys R Us® is a valuable trademark of a national toy store. If a toy store wanted to open with the name “Play Things R Us”, this would constitute an infringing trademark.

Copyrights are used to protect original expression, including literature, art, music, choreography, video games, CD-ROM’s, flow charts, articles and designs. The difference between copyrights and trademarks is often confusing to people. Copyrights apply to the expression of an idea. For example, it is possible (and recommended) to copyright the words to a song, but it is not possible to copyright the ideas behind the song. Copyright law requires three criteria be met: the work must be original; it must be in a tangible form such as on paper, tape, disk, etc.; and it must be creative. To illustrate these criteria, if someone creates a play, such as Hamlet, the script of the play may be copyrighted. The actual performance of the play, however, no matter how creatively preformed, can not be copyrighted. Additionally, if someone else actually wrote the play, then only that person can copyright the script.

Patents are the mechanism used to protect an invention or discovery. They can be granted to individuals or corporations. They are granted in three categories: utility, design and plant. Hundreds of thousands of inventors file for patents each year. Patents give the holder the exclusive right to manufacture or produce something and the right to prohibit others from producing or manufacturing a product that infringes on the patent. To qualify for a patent the invention must be a new and unique creation. For example, the manufacturer of Puffs tissues holds patents on its tissues because they were new and unique by adding lotion to the tissue. In order to protect the product, an inventor should not publicly sell or use the invention until it is patented.

Registration

The procedure for applying for a patent is quite complex and usually requires the expertise of an attorney who specializes in patent law. Typically patent attorneys have a background in engineering which helps facilitate understanding the invention. The patent application must be very detailed and include a drawing of the work. The application and drawing must be sufficiently detailed to enable someone else to reproduce the invention. An inventor of a utility or plant patent is given a 20-year monopoly on the product. Design patents are protected for 14 years.

Unlike patents, registration is not required to protect a mark. You can create “common law” rights (non-statutory) by just using the mark. In fact, in order to maintain the mark, the holder must continue to use it to identify the goods or services. When there is a dispute, the courts protect the first user of the mark. Once a mark is registered with the U.S. Patent and Trademark Office, the holder is presumed to be the first user and therefore granted rights against other infringing marks. Unlike patents, trademark protection lasts indefinitely as long as the mark is used to identify the product or service. The first step in protecting a trademark is performing a trademark search. It is unfortunate that many new businesses choose a name or logo for their product or business and use it for a while, thereby establishing name recognition, only to have to abandon it later because it infringes on a registered mark. Although it is not mandatory to register a mark, it is strongly recommended that this protection be received prior to expending resources on it. After registration it is important that the company be diligent in protecting the mark against infringing or confusing names or logos. Escalator® brand moving stairs lost their trademark because they were not careful about how people referred to their product. Now, moving stairs are commonly referred to as “escalators” no matter who manufactures them and the company that held that valuable mark lost its rights to the protection the trademark gave. Kleenex® brand tissues is another example. That mark is still valid and very valuable because its holder has been careful to ensure that disposable handkerchiefs are referred to by its competitors as “tissues” and not as “kleenex” generically. So if you buy tissue, it might be Scott tissues or Puffs tissues, not Scott “kleenex”.

Protecting copyrights is even easier than trademarks. You can claim copyright protection on a work prior to its publication, by placing the copyright symbol (©), date of first publication and the name of the person or entity claiming the copyright. Copyrights last for the life of the author of the work plus 50 years. If the creator is a business, the copyright lasts between 75 to 100 years. Registering a copyright with the U.S. Copyright Office provides further protection by providing notice to everyone of your prior claims on the work. If the creation is intended for national or international distribution, it is recommended that it be copyrighted with the U.S. Copyright Office. The application is quite simple and inexpensive.

Puffs tissues are a good example of the differences between patents, trademarks and copyrights. The company holds patents which protect their design of disposable handkerchiefs which have lotion in them, trademarks on their name and logos, and a copyright on the design of their tissue boxes.

As can be seen, although businesses are often reluctant to spend the money on registration of their intellectual property, this property may turn out to be the company’s most valuable asset. Your intellectual property may be your organization’s key to success.

THIS ARTICLE IS NOT INTENDED TO PROVIDE LEGAL ADVICE. IF YOU WOULD LIKE TO DISCUSS HOW THIS INFORMATION RELATES TO YOUR SPECIFIC SITUATION, PLEASE contact us.

Posted In: Business Law
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