Intellectual Property Law
Trademark vs. Copyright and other types of protection
Trademark protection is distinguished from copyright, patent and trade secret protection and we counsel on the roles that each of these might play in a particular business. For businesses with a process, product or information that could be made into a patent or protected as a trade secret, we counsel on the difference between these approaches as well. Lastly, in this area, there is the matter of licensing the protected item – whether it is a name, a business opportunity, a product or invention, a service, or original written material, music or art.
Trademark protection protects a name or look of a product, or the name of a service. Its focus is on protecting the identity of the business and protecting the fact that it is this particular business that has produced the product or offers the service in question. Its main purpose is to prevent other persons or companies from trying to pass themselves off as the original company that offers the genuine service or product. Copyright protection, on the other hand, protects the product itself from being copied. Whether it is in the form of written materials or a song or even a work of visual arts, it is the object itself that cannot be copied.
Patent vs. Copyright and Patent vs. Trade Secret Protection
The standard for patent protection is whether an invention is “new,” “useful” and “non-obvious.” Copyright protection protects against making a copy – patent protection prevents others from making or operating the invention even if the infringing company redeveloped or reverse engineered the invention. If a person or company has new product or process that it wishes to patent, it may have to consider the relative advantages of patenting vs. utilizing trade secret protection. Once a patent is issued, it gives the owner a 20 year monopoly on all use of the invention. The rights are clear, nationally enforceable and even internationally enforceable with additional, international filings of the patent. However, obtaining a patent involves disclosing the invention – you are protected when the patent issues but once the 20 years are up the invention is in the public domain for anyone to use. But more important – if the invention is judged not to be sufficiently “new” “useful” or “non-obvious” and a patent is refused, then the information is irretrievably in the public domain and cannot be turned back into a trade secret. Trade secret protection does not require any third parties to judge the invention. Its disadvantage is that is not protected by any one single clear set of statutes, but rather involves what are called “common law” protections, and it depends on the company instituting and always maintaining adequate procedures to protect the trade secret. Despite its appearing perhaps less clear and ‘forceful’ as a patent, there definitely are situations in which it is the preferable approach. An excellent example of a trade secret is the formula for Coca-Cola. It has been successfully protected as a trade secret for 100 years, whereas if it had been disclosed in a patent, the formula would now be long in the public domain.
All types of intellectual property protection generally have a common goal: the person or company wants to be able to exploit the protected intellectual property for profit. No matter which type of intellectual property is being considered, this is generally done through some form of licensing agreement. The essential feature of a licensing agreement is payment for the right to use or exploit the protected item. In this area, each type of licensing has its own requirements and it will depend on working closely with the client to correctly delineate the scope of the agreement.
Other Intellectual Property Rights
Under the heading of intellectual property, there are other similar rights, such as, for example, the “right of publicity.” There also is the right to be free of “slander” or “libel” and the related idea, in connection with real estate or real property, of what is called “slander of title.” There are other types of patents, such as design patents, and there is the whole area of broadcasting and compulsory licensing.
Please contact us for more information.