Patents, Copyrights, Trademarks and Trade Names

Rachel Blue

Patents, copyrights, trademarks and trade names are the basic components of “intellectual property”. Intellectual property laws provide protection and financial incentive for persons that invent, create, produce and sell goods and services. Without protection, inventors would suffer great risk that their best new inventions and ideas, and the profits that they could generate, would be quickly pirated. The result would be lower levels of research and development and fewer new inventions, ideas and products. Intellectual property laws also protect consumers from confusion, deception and harm.

Patents: A patent is a grant by the federal government of a monopoly right to an inventor to make, use or sell an invention to the absolute exclusion of others for the period of the patent, currently seventeen years from the date of approval or twenty years from the date of filing, whichever period is longer. The owner of the patent may also profit by licensing to others a right to use the patent. Once the original patent term expires it may not be renewed and the invention enters the “public domain” and anyone may then use it.

The Patent Act specifies the types of inventions that may be patented: any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof. To be patentable, it must be novel, have utility, and not be obvious. Naturally occurring substances or “discoveries” are not patentable as the invention must be made or modified by humans.

Copyrights: A copyright is a form of protection provided by Federal law that protects an original expression of an idea. It extends to authors of original works such as literary works, musical works, dramatic works, pictures, graphic and sculptural works, motion pictures and sound recordings. Applications for copyright are filed with the Register of Copyrights, Copyright Office, Library of Congress. A copyright is actually a bundle of separable rights, including the rights to reproduce, distribute, adapt, perform or display a work. For example, an artist who sells a painting might give up the right to display that work, but none of his other rights. The owner of the painting does not automatically buy the remaining bundle of rights when he or she purchases the painting. The owner of the copyright has the exclusive right to use or reproduce the work or license such rights to others. The doctrine of “fair use” allows for the limited use of any copyright in ways that facilitate criticism, comment, news reporting, teaching, scholarship, or research, but this is a very limited exception and often fails as a defense to copyright infringement.

Registration is not required for protection as copyright law protection begins as soon as the work is fixed in a tangible medium. There is no truth to the myth that you must send yourself a sealed envelope by registered mail in order to get a “do it yourself” copyright. Copyright registration is advisable, as it expands the remedies for infringement. Regardless of whether a federal registration is obtained, it is wise (though not required) to place a notice of copyright on all publicly distributed copies so as to give reasonable notice of the claim of copyright. A copyright notice typically consists of an encircled C, the author’s name and the year the work was created e.g. „ VERCOR, 2004

The copyright law has been revised several times, resulting in different life spans of a work depending on when it was created and which law applies to it. This month, the Supreme Courts upheld the extension of copyright terms, which means that many works from as far back as 1928 are still protected by copyright. It is wise to contact an intellectual property attorney before making use of artwork or literature, since it is not easy to determine what’s in the public domain.

Trademarks: A trademark is any word, symbol or device (even colors or smells) that identifies and distinguishes the source of a product or service. There are four types of marks: trademarks (used to identify goods, like cookies or clothing), service marks (used to identify services, like an insurance agency or car repair center), certification marks (indicating compliance with certain standards, like the Good Housekeeping seal of approval) and collective marks, which indicate membership in an organization, like The Boy Scouts of America. The federal government protects organizations and consumers by making it illegal for a person or organization to “palm off” or “pass off” goods from one source as goods from another, or “cash in” on the good will, good name or reputation of another.

To be federally protected, a mark must be distinctive so that it identifies the origin of the goods or services. Marks that are fanciful or arbitrary satisfy the distinctiveness requirement, whereas generic or descriptive designations do not. To obtain Federal protection, the mark must be registered with the Patent and Trademark Office. Registration serves to notify to all that the registrant has exclusive rights to use the mark, and permits the registrant to use Federal courts to enforce the mark.

Trade Names: A trade name is any name used to identify a business and its assets. The difference between a trademark and trade name is that the first distinguishes a particular product as coming from a particular source, even if that source is unknown. (For example, a consumer may be able to easily distinguish OREO cookies from HYDROX, without knowing what company makes either one of those cookies. A trade name, on the other hand, is the name a business uses to identify itself, like the MCDONALD’S CORPORATION. Sometimes a company will use its trade name as a trademark on products or services (COCA-COLA or MCDONALDS are good examples) but that’s not always the case. A holding company might be organized to own trademarks and service marks for tax reasons. Although a trade name may not be federally registered, trade names are protected and any person that attempts to “palm off” his goods as the goods of another is liable for damages.

Rachel Blue is a former Examining Attorney with the U.S. Patent & Trademark Office. She heads the intellectual property law section of the Tulsa firm of Doerner, Saunders, Daniel & Anderson. She may be reached at rblue@dsda.com.