Types of Intellectual Property (IP) and IP Issues

Trademarks:

Trademarks are words, symbols, logos, pictures or packaging used to identify the source or origin of a product or service. In the United States, trademark protection arises from use of a mark in commerce; additional protections are afforded by registering a mark with the United States Patent and Trademark Office (“USPTO”). An application for registration with the USPTO may be based on actual use of a mark in commerce or a bona fide intention to use the mark in commerce at a later date.

For answers to frequently asked questions concerning trademarks, we recommend the United States Patent and Trademark’s website located at: http://www.uspto.gov and the International Trademark Association’s website: http://www.inta.org

Copyrights:

Copyright protection is available for a wide variety of original creative works, including, but not limited to, literary, musical, dramatic, scientific and artistic works which are fixed in a tangible medium of expression. A holder of a copyright has the exclusive right (for a limited time) to reproduce, distribute, perform and display the work in a public forum, and may create derivative works based on the original copyrighted material. Copyright protection is automatically available when the author creates the work and fixes it in a tangible medium, such as writing it on paper, recording it on tape or saving it to a computer disk. Registration with the Library of Congress is not required to obtain a copyright, but it is required before a copyright owner may bring an infringement lawsuit in federal court.

For answers to frequently asked questions concerning copyright issues, we recommend the Library of Congress’ website at: http://www.copyright.gov/help/faq/

Patents:

A patent is an extremely valuable right (limited in time) granted by the U.S. government. The patent grants the patent owner the right to exclude others from making, using or selling an invention or offering it for sale. The invention must be novel, non-obvious, useful, and specifically described in a patent application. There are no common law rights in a patent; rather, the invention must be claimed in a patent application filed with the USPTO. There are three types of patents issued by the USPTO:

  1. utility patents, which are granted for (a) a process or method for producing a useful, concrete, and tangible result, (b) machines, (c) articles of manufacture and (d) compositions of matter;
  2. design patents, which are granted for designs of useful objects that are new, original and ornamental; and
  3. plant patents, which are granted for seeds or plants which are novel and non-obvious.

For more information on patents, see the United States Patent and Trademark Office’s web page at: http://www.uspto.go

Trade Secrets:

Trade secrets are ideas, formulas, or processes which provide the owner with an advantage in the marketplace and are reasonably expected to be kept secret. Trade secret protection is available for information which is set out as confidential. This can be done by preparing non-disclosure and confidentiality agreements which establish a duty of confidentiality. Some people may be bound automatically by a duty of confidentiality by the nature of their relationship with the company and whether they frequently come in contact with the information.

A good article concerning trade secret protection can be found at: http://www.bizjournals.com

Unfair Competition:

Unfair competition refers to actions which cause economic injury to business through deceptive or wrongful action. Some examples of unfair competition claims are: false advertising, right of publicity, invasion of privacy and deceptive trade practices.

False Advertising:

False advertising is a misrepresentation made by a company in the course of business. The misrepresentation generally refers to the nature, characteristics, qualities or geographic origin of the company’s or another’s goods or services.