In the murky world of intellectual property, it is easy to confuse copyright, patent, and trademark law. But understanding these three very different legal areas is often the key to effectively protecting your intellectual property from would-be IP thieves. The three distinct categories of intellectual property protection are patent, copyright, and trademark. If you are considering obtaining intellectual property protection, your work is likely an invention, original work of authorship, or a device used to identify specific goods. Once you define your property, you can identify which protection you should obtain and begin to understand just what that protection affords you.
Have you invented something? If your property is an invention, then you and your partners in invention will be eligible for a patent. Patents are issued by the U.S. Patent and Trademark Office and, unlike copyright and trademark, are only available in the U.S. The right given by a patent is not the right to make, sell, offer, or import the item in question, but rather the right to exclude others from making, offering, selling or importing it. Thus the right is one of exclusion and must be enforced by the holder.
Patents are granted on a first-invented, first-rights basis. Since obtaining a patent can involve a significant financial investment for a product or idea that has not yet been market-tested, inventors frequently exercise the provisional patent option. Applying for a provisional patent features fewer required sections but will secure an official filing date, which is proof of an invention date and helps establish your exclusive right to your idea. A provisional patent buys the inventor up to one year of extra time during which the inventor can begin the formal process of obtaining a non-provisional patent and testing the invention in the market.
The term of a patent is 20 years, and the clock officially begins to run as of the date that the patent application was filed in the United States. For some pharmaceuticals and for special circumstances, the term of some patents may be extended, but the general rule of thumb is that after the expiration of the 20-year period, anyone may freely exploit the invention.
Have you authored something? If your property is an original work of authorship, fixed in a tangible medium, and you did not author the work at the direction of an employer, then you will be in the market for copyright protection. Original books, scripts, drawings, paintings, music and photographs fall cleanly into this category. If you are the author of an original work of this kind, you already own the copyright, as it automatically is established as soon as you put your work in a concrete form, but it is not yet a registered copyright. Registered copyrights afford the highest degree of protection and are established once you apply and register with the Copyright Office of the Library of Congress and record that registration with the State, where necessary.
A registered copyright grants you a lifetime interest in the copyright of the work, meaning that no one may exploit, perform, reproduce, or develop your idea without your express permission. Like a patent, copyright is also an exclusionary right for the copyright holder. Registering a copyright makes it much easier to prove your ownership, since it is federally registered. Owners of a registered copyright are granted additional legal protection, such as the ability to sue for higher damages and attorney's fees in litigation.
Once you have it, the term of the copyright lasts for 70 years after your death, so your copyright may become a part of your estate in some cases. Of course, you can license your work to willing buyers at your discretion, but you will still have the right to revoke the license after the licensor has held it for 35 years. Copyright is a remarkably powerful tool, both because it is substantiated in writing and because of its remarkable duration.
Have you created or built a name, symbol, or word that is used in association with trade goods for the purpose of distinguishing your goods from the goods of others? In other words, have you created a brand? If so, you are likely hoping to obtain trademark protection. The trademark insignia provides notice to the public that the US government recognizes your mark. Upon registering your trademark, you can prevent others from using your mark or any substantially similar mark. If competitors can't infringe on an identity you've built, they can't take advantage of your customer base.
Trademark rules can be tricky, and the current law is mostly concerned with so-called famous trademarks, or trademarks that are easily recognizable to the general public. The most conservative interpretation of trademark law supports the idea that no one may reproduce a famous trademark for commercial use without permission.
While the patent and copyright protect the creators of the original works, trademark protection is intended to protect the consumer from brand confusion. Because of this difference, trademark rules are somewhat unlike patent and copyright rules. Only trademarks used in interstate or foreign commerce can be registered the USPTO. While some proprietors might not realize it, web-based businesses fall in both categories.
The differences between these categories are massive, and anyone looking to obtain intellectual property protection should first understand what he or she has created and how best to protect that creation. If you have gone to the trouble of creating something original, it behooves you to expend the extra energy to protect it too.