Intellectual property (also known as “IP”) refers to innovations of the mind, such as scientific inventions; literary & artistic works; designs; and symbols or names used in commerce. Depending upon the type of intellectual property a person or business creates, common law and/or federal law may grant some form of protection for the IP. This “protection” prevents others from using the same idea, design, invention, etc. without the creator’s permission.
Generally speaking, most intellectual property falls into one of four categories – copyrights, trademarks, patents, and trade secrets. Depending upon which category the IP falls into, different protections may apply. The goal of these protections is to allow individuals, business owners, and entities to establish ownership and benefit from their creations. To enact these protections and make them legally binding, you will need to register them with the appropriate office. Trademarks and Patent are registered through the United States Patent and Trademark Office (USPTO) while Copyrights are governed by the United States Copyright Office Trade Secrets are not registered and we will not discuss them in this article.
In this post, we will discuss Copyrights and Trademarks, the differences between the two, and how to protect them from unauthorized use or infringement.
Copyrights and Trademarks Defined
Copyrights protect artistic, creative, or intellectual works, for example, arts, music, and literature.
As such, businesses and individuals can copyright books, audio and video produced or created internally.
Trademarks protect the use of a business’s name, as well as any products, designs, or branding (i.e. logo, slogans, etc.) used by the business to promote and distinguish itself from other businesses. Trademarking prohibits the use of a known and commercially used “mark” by a person or business other than the trademark holder.
Under US common law, your works are automatically copyrighted at the time they are created. However, in order to truly protect your interests, registration is required. A registered copyright will enable you to enforce your rights and formally begin court proceedings against another party for unauthorized use. To ensure your work will be approved as a registered copyright, you will need to meet the following requirements:
- Creation – To justify copyright protection, a work must be original; meaning it must have first been created by the party wishing to register it.
- Tangible Medium – A copyrighted work must be “fixed in a tangible medium of expression.” This means that the work must be established in some fixed structure, such as a book, print or written work, film, sound recording, or computer program, for example.
If these requirements are met, the copyright holder will retain exclusive rights to print, display, distribute and perform the work as well as publish and transmit it over the Internet. The right also extends to derivatives of the work, for example using samples of an original song to create a “remixed” version.
Copyrights are valid for the life of the creator of the material, plus seventy years. This includes performance and internet broadcasts of the copyrighted work.
A copyright holder may also transfer all or part of their rights to another person or entity.
When deciding on a trademark for your business, like a logo or slogan, you should always consider the look, language, and format of the mark. In order to qualify for registration, the mark will also need to identify a particular good(s) or service(s), as well as be unique. For example, the trademark for the word “McDonalds” may not be available for hamburgers or food providers, but it may be available for someone who wants to register the word for a shoe company.
Trademark searches ensure that your mark(s) are distinctive when compared to other registered trademarks. Uniqueness and distinction of a trademark are determined based on whether or not the court thinks the average consumer is likely to confuse your mark with an already existing trademark. A thorough search will include the U.S., Canada, and Europe as well as any applicable DBA filings. If your trademark is too similar to other marks, the application may be returned for revisions or rejected.
|Definition||Artistic, creative, or intellectual works||Any word, phrase, symbol, and/or design that identifies and distinguishes one business, entity, organization from another|
|Composition||Must be original, creative and fixed in a tangible medium||A mark must be distinctive, available and not confusing|
|Duration||Author’s life plus 70 more years.||For as long as the mark is used in commerce|
|Protection||Right to control reproduction, derivatives, distribution and display including on the internet||Right to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion to the average consumer.|
Given the legal ramifications and risks associated with protecting you brand, it is highly recommended that you utilize an attorney to assist in your copyright and trademark registration.
What Should You Do Next?
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This article is for informational purposes only. It does not create an attorney-client relationship with any reader nor should it be construed as legal advice. If you need legal advice, please contact our firm.