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What Is a Trademark? How Does It Differ from a Copyright and a Patent?

It’s amazing how often people confuse trademarks with copyrights and patents. Not an intellectual property lawyer? Not a lawyer at all? No matter. Here’s your cheat sheet:

Trademarks. The federal trademark statute, the Lanham Act, defines a trademark as “any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer’s] goods … from those manufactured or sold by others and to indicate the source of the goods….” 15 U.S.C. § 1127. In other words, it’s a source identifier. It’s the means that tells a person the cola he’s drinking comes from the Coca-Cola Company. That way, if he likes what he’s drinking, he’ll know where to go back for more. The owner of a trademark is protected against infringement, which occurs most often when a later-adopted trademark is confusingly similar with an earlier-adopted trademark. In the United States, trademark rights spring automatically by using the mark in connection with a good or service. Registration is not required, though doing so provides the user additional benefits. A trademark lasts forever, as long as it is in use.

Copyrights. A copyright is the bundle of rights an author gets when she creates an original work that is “fixed in any tangible medium of expression” that can be “perceived, reproduced, or otherwise communicated.” 17 U.S.C. § 102(a). Such works include literary works, sound recordings, and computer programs, among others. When an author creates an original work, such as a Web page, copyright law gives the author the exclusive right “to reproduce the copyrighted work in copies…”; “to prepare derivative works based on the copyrighted work”; “to display the copyrighted work publicly”; and to authorize others to do those things. Other rights exist for other kinds of works, such as the exclusive right to perform an original piece of music. These rights exist the moment the work is created. Like trademarks, registration is not required, but registering a work gives the author important benefits. New copyrights generally last 70 years after the author’s death. 17 U.S.C. § 302(a). After that, the work becomes part of the public domain and copying is allowed.

Patents. Finally, a patent grants the inventor of a novel, non-obvious, and useful invention the right “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” 35 U.S.C. § 154(a)(1). There are three types of patents: utility patents (for new useful processes), design patents (for new ornamental designs for an article of manufacture), and plant patents (for new varieties of plants). A new patent owner generally can enjoy monopoly rights for 20 years from the date the patent application was filed, after which time the invention becomes part of the public domain and can be used by anyone. This is intended to encourage innovation by giving the patent owner the temporary ability to cash-in on its exclusive rights in exchange for disclosing the invention and eventually allowing others to use it for free. Registration is required; an inventor gets no rights until they are conferred by the federal government.

Posted on September 10, 2007 by Registered CommenterMichael Atkins in | CommentsPost a Comment

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