A reporter recently interviewed me about a trademark issue. The story, however, discussed the issue in terms of patent law.
That’s a common mistake. It goes to show that even sophisticated persons can confuse patents, copyrights, and trademarks.
This comes up in my practice all the time. Hopefully, it will help to set one category of intellectual property protection apart from the others. Here goes:
Trademarks- Trademarks are brand names. They tell consumers where the branded good or service comes from. It can be a name or word (like NIKE), a logo or design (like Nike’s “Swoosh”), or a slogan or tag line (like “JUST DO IT”). Trademarks can take other forms, as well, like a product’s shape or a restaurant’s interior — as long as the shape or interior points back to the maker or owner. Trademark law protects brand owners against later-comers from adopting marks that are likely to cause consumer confusion with the earlier-adopter. It keeps competitors at arm’s length so they can’t free-ride on the first adopter’s reputation. Trademark rights arise automatically by using a brand in customer sales, but an owner can expand its automatic, localized rights by registering its mark with a given state or at the federal level with the U.S. Patent and Trademark Office. Trademark rights can last forever — just as long as the owner continues to use the brand in sales.
Copyrights - Copyright law protects against unauthorized copying. Once the creator fixes a work in a tangible medium (usually by writing it down), assuming the work is at least minimally creative, the creator can stop third parties from copying, using, distributing, or adapting the work without permission. These protections arise automatically, but to enforce one’s rights, the author, artist, composer, or coder first must register the work with the U.S. Copyright Office. Doing so before the infringement occurs gives the owner additional protections. Copyright only protects the original expression embodied in a work; it does not protect stock elements or the work’s overall idea. Copyrights last for decades, but not forever. Once a work is “out of copyright,” it is in the public domain, enabling anyone to copy, use, distribute, or adapt it without permission or payment.
Patents- Patents are a government-issued monopoly. Unlike copyrights, they can protect an idea. They give the owner the owner the right to stop others from using the invention, process, or design covered within the scope of the patent. To qualify for protection, the work must be new, original, and useful (for a utility patent), or new, original, and ornamental (for a design patent). Utility patents last up to twenty years; design patents last fourteen. Once a patent expires, the subject matter falls within the public domain and may be used or copied at will (as commonly seen with generic drugs).
There are other forms of intellectual property protection, such as trade secrets, unfair competition, and an employee’s duties of loyalty and confidentiality. But trademarks, copyrights, and patents are the big three. They’re often confused, but they needn’t be.