- Lets understand the difference between a copyright, a patent and a trademark, I’ve provided definitions and examples of each.
Intellectual property encompasses creative works of the “human Intellect that have commercial value.” [1] These creative works are afforded legal protection under intellectual property laws such as trademark law, copyright law and patent law. [2] There are differences between the three legal protections.
- Copyright Law:
When one is granted a copyright, the copyright is not granted to protect the ideas and facts used in the creative work. Rather, the copyright is granted to protect the form of which the outward manifestation of the original creative thought, idea or work is publicized. [3] Some examples of creative works that could be protected under a copyright include songs, computer programs, books, music or written works. [4] To further explain copyrights, let’s look at the computer program, specifically HTML programming. HTML is one of several computer languages used to create web pages. While the computer language is open to the free use (just as English and Spanish languages) by the public, any original work created from the unique way one uses that language can be protected under copyright law. Thus, the fact (computer language), or the idea (creating a web page) is not protected. But, the resultant work from the creative manipulation of the language is copyrightable. When the writer arranges the words to a paragraph in such a specific order, or when the composer arranges the musical notes in such a specific order, a copyrightable, creative work is manifested. Copyrights can last for the duration of the life of the person who produced the creative work, plus seventy years. [5] When one uses the creative work without permission from the copyright holder, he has infringed on the copyright and could be civilly liable for damages resulting from the infringement.
- Patent Law:
With a stated goal of patent laws to “promote the progress of science and useful arts,” [6] we can recognize that patent laws are designed to promote research and subsequent invention by granting “exclusive property rights” to the inventor. [7] Part of the exclusivity the patent holder enjoys is the “exclusive right to produce, use, sell,” or license these rights to a third party. [8] Patent rights last for twenty-years from the date of the patent application. [9] However, while the patent holder enjoys the exclusive rights under the patent, he also bears a burden in that he is required to disclose enough information about the invention to those “skilled in the art” to be able to make and use the product. [10] One example of an invention where patent protection was applicable was when Google invented the process for using a microprocessor to generate high resolution graphics on a raster scanned cathode ray tube. [11] When one uses a patented work without the permission of the patent holder, he exposes himself to any liabilities resulting from the infringement.
- Trademark Law:
Trademarks are signs, symbols, names, logos or other unique elements businesses use to distinguish a product, brand or service from other competing businesses. [12] Because I hold a trademark, I am familiar with the process. During the application process, the trademark attorney will search to see if there are any conflicts between an existing trademark and the new, proposed trademark. The trademark applicant will also specify which classes of goods and or services the trademark applies to. The trademark (as long as it is being used in commerce) is valid for 10 years with ten-year periods of renewal. [13] The trademark holder can pursue civil remedies against those who infringe on the trademark. Lastly, an example of a trademark would be the name Ronald McDonald. While the issuance of a trademark cannot stop people named Ronald McDonald from using the name, the trademark stops other competing businesses from using the name and protects the style in which the Ronald McDonald signature is written. The McDonalds corporation owns this trademark and is a part of the branding for the McDonalds fast food chain. [14] The trademark was first used in commerce on May 31, 1958. The mark applies to the following U.S. classes: 100, 101, 107 and international class 041. [15] The trademark office lists the defining characteristics of the trademark classes. [16]
[1] Richard Stim, Patent, copyright & trademark 3 (9th ed. 2007).
[2] Id.
[3] Id.
[4] John G. Sprankling, Understanding property law 74 (2000).
[5] Id.
[6] John C. Stedman, Public Interest and the Patent System Invention and Public Policy, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2327&context=lcp (last visited Mar 2, 2018).
[7] Stim, supra, note 1, at 3.
[8] Id.
[9] 35 U.S.C. § 154(a)(2).
[10] 35 U.S.C. § 112.
[11] US4136359A – Microcomputer for use with video display, Google Patents, https://patents.google.com/patent/US4136359 (last visited Mar 2, 2018).
[12] Stim, supra, note 1, at 3.
[13] Sprankling, supra, note 4, at 76.
[14] Trademark Status & Document Retrieval, United States Patent and Trademark Office, http://tsdr.uspto.gov/#caseNumber=85651028&caseType=SERIAL_NO&searchType=statusSearch (last visited Mar 2, 2018).
[15] Id.
[16] US Classes by Number with Title, https://www.uspto.gov/web/patents/classification/selectnumwithtitle.htm (last visited Mar 2, 2018).
