What is intellectual property, do I have it and what can I do to protect it? Most people have heard the words intellectual property, but are not familiar with what it really means. Intellectual property is the right to an abstract or “intellectual” concept, as compared to real estate or tangible property, and the forms of protection include patents, trademarks and copyrights. I thought it would be helpful to distinguish between these principles and provide some insight into which is appropriate for a given situation.
A patent provides rights to an invention, which must be new, useful and non-obvious given what is out in the world already. One cannot patent an idea, but can patent the design for a new product or process. One can patent things as diverse as tools, recipes, electronics, games, software, and even methods of conducting business, as well as components and improvements to each of those things.
A patent is essentially a pact between the inventor and the government. The inventor agrees to share with the public the subject matter of the invention and the best way of making it, and the government gives the inventor a monopoly over the subject matter for 20 years. A patent entitles the owner to exclude others from the marketplace, or license the invention to others for a royalty or other compensation.
A trademark provides rights to the name or logo associated with a business, manufacturer, or brand, so long as it is distinctive and not currently in use by another. It serves to identify the source of origin of goods or services and to prevent confusion or deception in the marketplace. For example, Ralph Lauren owns rights to the mark POLO for clothing, Apple owns rights to the marks iPOD and iPHONE for its devices, and Sunnyside Federal owns rights to the mark SUNNYSIDE and its new sunburst logo for banking services.
A party that makes commercial use of a mark acquires certain “common law” rights simply by using it, but obtaining a trademark registration from the U.S. Patent and Trademark Office provides numerous advantages. Trademark rights continue indefinitely so long as the mark is used in commerce and the registration is properly maintained.
A copyright provides rights to the expression of an idea, whether it is literary, musical, artistic, or commercial. For example, the author of a biography owns the rights to the story, but not to the subject matter of the person’s life. Similarly, the designer of a pattern for stationery owns rights to the pattern, but not to the underlying colors or materials.
A copyright is established once a work is published or fixed in a tangible medium. However, our national system of copyright registration provides various advantages and one must file with the U.S. Copyright Office before any infringement suit can be brought. The term of a copyright depends on various factors, but generally endures for the author’s life plus 70 years.
The Appropriate Protection
Whether and how to seek intellectual property protection for your assets is something that should be carefully evaluated by an attorney. In some cases, it may be advisable to obtain more than one form of protection and in other cases, to forego protection entirely. For example, Coca Cola elected not to patent its formula because it would then eventually become public, and has instead maintained it as a trade secret. However, if the formula could have been reverse engineered, the company might have pursued a different strategy.
If you want to use a name or logo for marketing, you should conduct a trademark clearance search to determine if anyone is currently using a similar mark. This usually involves a search through Patent Office records, state filings and the internet and is typically conducted by an attorney using a professional search firm.
Artists, designers, musicians and authors should consider filing their works for copyright protection, as should a software or website designer.
Anyone developing a new product or process should give serious consideration to patent protection. Again, the first step would often be to conduct a formal search to see if the concept has already been patented or would be obvious in light of “prior art,” and therefore non-patentable.
Intellectual property is an area of the law that has grown significantly in recent years and has become a valuable asset for many businesses.
[blockquote class=blue]Kenneth M. Bernstein, Esq. has a legal practice on Main Street in Irvington, specializing in intellectual property law, business law, litigation, real estate, and arts and entertainment law. He can be reached at firstname.lastname@example.org or www.kbernstein.com.[/blockquote]