Trademarks and Service Marks
A mark is any word, name, symbol, or design that identifies a product or service. A trademark identifies a product (for example, Coca‑Cola). A service mark identifies a service (for example, Holiday Inn). A mark may be registered with the United States Patent and Trademark Office (USPTO) if the mark distinguishes a person’s product or service from products or services of competitors.
Copyright Law Highlights
Registration of a mark on the Principal Register of the USPTO entitles a person the exclusive use of the mark. Registration can also be accomplished with a State (usually with the Secretary of State of a particular state). However, State registration does not provide as much protection as Federal registration. Before a mark can be registered, it must be used by the “owner,” and it must distinguish goods or services from others. The owner of a mark cannot register it with the United States Patent and Trademark Office unless the mark is used in interstate commerce.
Generic terms that merely describe a class of products cannot be registered. For example, the term motor oil or the word airline would not be accepted for registration. Descriptive or geographical terms cannot be registered unless they have acquired a secondary meaning. A mark acquires a secondary meaning when, through long usage, the public identifies the mark with a particular product. For example, Best Western Motels involves a mark which has a secondary meaning.
As stated earlier, registration entitles a person to the exclusive use of a mark. An owner of a mark can prevent others from using it with a court ordered injunction. An injunction is a court order preventing the improper use or duplication of a mark that may confuse the public.
One can be an owner of a trademark or service mark, whether or not it is registered. This is common law protection. Registration is proof of ownership and makes ownership rights easier to enforce. The basic question in lawsuits over marks is whether or not the general public is likely to be confused as to the origin of the service or product.
If the owner of a mark permits widespread use of the mark to describe a general class of products, the exclusive right to the mark may be lost. Two examples are cellophane and aspirin.
The word copyright can be defined as a property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. Copyright protection may be received regarding a wide range of creative, intellectual, or artistic forms or works. These include poems, plays, and other literary works, movies, choreographic works (dances, ballets, etc.), musical compositions, audio recordings, paintings, drawings, sculptures, photographs, radio and television broadcasts. The creator of the work has a limited monopoly on the work and can, with some exceptions, prohibit others from copying or displaying the work. The United States copyright law is contained in Chapters 1 through 8 and 10 through 12 of Title 17 of the United States Code.
For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (i.e., the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published. All works published in the United States before 1923 are in the public domain. The term public domain refers to creative materials that are not protected by intellectual property laws such as copyright, trademark or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.
Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.
A copyright is obtained simply by creating the work. It comes into existence automatically on the dated it is created. However, in order to get federal protection of a copyright, the creator of the work has to file two copies of the work with the Copyright Office in Washington, D.C.
Copyright law is designed to create an incentive for creativity by allowing the author to profit from his work. The Act tries to balance this need to protect the author with the public=s need for free and open discussion. A copyright owner has the exclusive right to:
reproduce the work;
prepare derivative works, such as a script from the original work (e.g., movie script for Book The Rainmaker);
distribute copies or recordings of the work; and
publicly display the work in the case of paintings, sculptures and photographs.
The Federal Copyright Act contains several exemptions that allow a person or institution to use or copy a copyrighted work without the owner=s permission. Three such exemptions are:
the fair use doctrine which allows copying for such purposes such as teaching;
the right of libraries to make limited copies; and
certain performances and displays for teaching or religious purposes.
The fair use allows reasonable use of copyrighted works (without requiring the author=s permission) for teaching, research, and news reporting. The Federal Act states: A[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.@
There are four important factors that must be looked at when determining whether or not the fair use doctrine applies:
the purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount of the portion used in relation to the copyrighted work as a whole; and
the effect of the use on the potential market for or value of the copyrighted work.
Federal statutes give an inventor the exclusive right to use, sell, and market his invention. The types of things that can be patented are things that are new, useful, and not obvious to those in the business to which the invention relates. An invention also may be a process, a new chemical or even a new type of plant.
Patents are granted by the U.S. Patent and Trademark Office in Washington, D.C.
There are three types of patents: utility patents, design patents and plant patents. The difference between a design patent and a utility patent is that a design patent protects the ornamental design, configuration, improved decorative appearance, or shape of an invention. This patent is appropriate when the basic product already exists in the marketplace and is not being improved upon in function but only in style. For example, designer eyeglass frames, the original Coca-Cola bottles, and “Pet Rocks” would have all been protected with design patents. A U.S. design patent lasts for 14 years.
A utility patent protects any new invention or functional improvements on existing inventions. This can be to a product, machine, a process, or even composition of matter. Examples of a utility patent would include a better carburetor, a new type of self-fastening diaper or a new recipe. The life of a U.S. utility patent lasts 20 years from the date of filing assuming the patent is granted, but the owner of the patent must pay maintenance fees to the United States Patent and Trademark Office (USPTO) to keep a utility patent from expiring.
A plant patent may be issued for a new and distinct, invented or discovered asexually reproduced plant including cultivated mutants, hybrids, and newly found seedlings, other than a plant found in an uncultivated state. A plant patent permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application filing. Plant patents are not subject to the payment of maintenance fees.
Before a patent is granted the applicant must submit his idea to a patent examiner in the patent office who will make a determination as the whether or not the invention is new and not obvious to a person of ordinary skill in the area in which the invention is related. The examiner=s decision can be appealed to the Board of Patent Appeals or the Court of Appeals for D.C. circuit.