Intellectual Property, Copyrights, Patents & Trademarks
Intellectual property law includes patent law, copyright law, trademark law and trade secret law. Some aspects of other areas of the law, such as freedom of speech and unfair competition often are intertwined with intellectual property matters. Internet activities also frequently involve intellectual property law matters such as domain name and trademark rights, copyrights for web site content and related software, patents for unique business methods and trade secret protections for proprietary information.
Copyrights protect “original works of authorship,” including literary, dramatic, musical, artistic and certain other intellectual works. Books, paintings, films, sound recordings and software are some of the “works of authorship” that may be protected by copyrights. Design elements in a functional item, such as an artistic design for the legs of a chair, may also be protected by copyrights. There are common law copyrights that, in the United States, automatically arise with the creation of the works. Registering a copyrightable work with the United States Copyright Office provides additional advantages and protections to the copyright owner.
Patents protect inventions. A patent for an invention is the grant of a property right to the inventor. In the United States, patents are issued by the United States Patent and Trademark Office. The term of a new patent is usually 20 years from the date on which the application for the patent was filed in the United States. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. There are three types of patents: (i) utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof; (ii) design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and (iii) plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Potential patent protection will be lost if an invention is disclosed or the related product is sold in commerce and a patent application is not timely filed. A patent attorney should be consulted prior to disclosing or using any invention for which you may want to file a patent application.
Trademarks and service marks protect marks used on or in connection with goods (trademarks) or services (service marks) sold in commerce. The mark protected can contain words, numbers or other images or any combination of words, numbers and images. “Nike” is an example of a trademark. “United Airlines” is an example of a service mark. Exclusive rights to a trademark or service mark can be obtained based on actual use of the mark in commerce. Rights based on such use are known as common law rights. Superior protection for a trademark or service mark may be obtained under the Lanham Act by registering the mark with the United States Patent and Trademark Office. Trademark and service mark applications may be filed on the basis of actual use (for a mark that is already being used in commerce) or on an intent to use basis (for a mark that one intends to use in the future). Filing a trademark or service mark application on an intent to use basis is a good way to protect a mark before you begin using it in commerce. The mark will have to be used in commerce before a registration will be issued, but in the meantime a pending intent to use application generally provides priority over any later filed application or any subsequent use in commerce by a different party. Prior to using or applying to register a trademark or service mark, it is advisable to have an attorney conduct a trademark availability search to determine if the same or any confusingly similar mark is already in use or on file as a pending application. Contact California business attorney Matt Sumrow for further information on how to protect your company’s business ideas and intellectual property.