Copyrights, Trademarks & Patents, Oh My!
We are in the new information age, where what you know is king. So it’s more important than ever to protect the proprietary information, processes and equipment that are important to your business, and that includes intellectual property.
The way you protect your company’s proprietary information, processes and equipment are with copyrights, patents and trademarks. So today’s article will give you a brief introduction to these three legal protections and what they do.
Let’s Start with the key questions you might want to know:
1. What is a copyright?
2. Can everything be copyrighted?
3. How long do they last?
4. How can I get MY Stuff copyrighted?
A copyright is the expression of an idea. The idea itself is not copyrighted. Ideas can be patented and I will talk about patents later. Let’s consider the example of a story: a young good hearted but poor man found lots of cash on his way home from his job. He decided to keep the cash to pay for a surgery badly needed by his younger brother. But he couldn’t sleep that night because he was haunted by strange voices that told him to find the owner and return the cash. This idea cannot be protected. Anybody can write a short story based on the idea. What is protected is how the author expresses the idea in the form of texts, illustrations, drawings, photographs, etc.
All copyrighted materials have to be permanently recorded in some way, (papers, CDs, DVDs, etc.). If it is not fixed in a tangible medium, you can’t copyright it. For example, your speech to the graduating class that was never recorded, taped, or published is not protected under the US Copyright Act. All expressions of ideas are copyrighted the moment they are permanently recorded in some format, regardless of whether or not it is registered with the Copyright Office. However, if you register the expression with the Copyright Office, you can receive statutory damages and attorney’s fees if an infringement occurs. If the material is not registered with the Copyright Office, you can only recover actual damages.
After the story is expressed in a permanent form and copyrighted, others can still use it for fair use. You can tape a10-15 second video clip from a copyrighted TV program and post it in your video blogs about a commentary on the program or broadcaster, or a short excerpt from a story to review a book you are commenting on, etc. This will be considered a fair use and you will not infringe the copyright.
After a copyrighted material expires, it falls into the public domain. The life of copyrighted material is the life of the author, plus 70 years. Copyrighted materials that fall into public domain can be reproduced without any infringement. For example, if you have an old picture with an expired copyright, you can post the picture on your website. You can even take old books, and other writings from the public domain and use them to write your own copyrightable material. Of course, this requires making substantial changes and adding original content that makes it your own original expression.
Copyrights are filed with the US Copyright Office at the Library of Congress and can be done both by mail and online. Fees vary greatly depending on what you are copyrighting and how. For more info you can check out this link: https://www.copyright.gov/
Patents are a whole different animal.
A patent holder of an invention has the right to exclude others from using, selling, and making the invention. The United States Patent Office (USPTO) awards patents. There are three kinds of patents: utility, design, and plant patents. The most frequently used patents are utility patents. Utility patents have a life span of 20 years from the filing date, if the filing date is after June 8, 1995, and requires periodic maintenance fees to keep it active. A utility patent is given to a useful new invention or non-obivious process or use, a machine, a way of manufacturing, or compositions of something or significant improvement to something. There are three things that define a utility patent. First, it must be new. Nobody should have invented, published, used, or manufactured the invention before. Second, people must be able to do something useful with the invention. If it is just novel without any usefulness, it cannot be patented. A patentable invention can’t be obvious to the average person in the field related to the invention. A design patent is the appearance or look of an object, invention, packaging, etc and it has a life span of 14 years after the patent is issued. A plant patent, as the name applies, protects a distinct plant produced asexually. It has life span of 20 years from the filing date.
And of course there’s trademarks
Trademarks are different from copyrights. A trademark or servicemark is generally a word, symbol, design, or a combination of one or more of these items, (like a logo). A trademark is basically used for goods and a servicemark is used for services. So a restaurant or consultant would have a servicemark, where a retailer or widget manufacturer would have a trademark. For the purpose of this article I will be using the term trademark to include both terms.
Trademarks identify the source of goods and services, of one company and differentiate a company’s goods and services from others. A trademark cannot be confusingly similar to other existing names or symbols. The trademark, like a patent, is registered with the USPTO. It can also be registered locally through the state’s Secretary of State’s Office.
Most people are familiar with the idea that many companies trademark their logos. However, in some cases, if done right it can also be used to extend the life of a copyright. This is because unlike copyrights and Patents, trademarks & servicemarks do not expire and remain effective for as long as they are actively used and protected. Disney used this fact very effectively to extend the life of many of his cartoon characters like Mickey Mouse, Goofy and Donald Duck to name a few, by not only copyrighting his stories, but also trademarking the characters. Now even though the copyright has expired on these characters they have not fallen into public domain because of the trademark protection which the Disney Organization continues to actively use and protect vehemently.
You cannot use the symbol ® to represent a mark if it is not registered. However, you can use the TM symbol to let others know that you consider it a trademark and that it is being registered. A trademark like, the copyright is trademarked when you begin to use it in trade but if the trademark is not registered, the rights to the trademark may be geographically limited.
If you want to maintain a trademark for your business, you must actively use it. Just registering a trademark without using it actively will result in diminished rights over time. You also have to protect it. Never allow a trademark to become a generic word. For example, the trademark “Aspirin” by Bayer has become a generic word to represent acetylsalicylic acid. Once that happens others can use it without causing any infringement. This is why companies act so quickly to protect their trademark when they see others using it in a way that could weaken their rights; for example the stories you hear of the Disney Company suing some little mom & pop daycare center for using the Disney characters without permission. This is not because Disney is being mean, they’re simply protecting their rights so they don’t lose them.
Here is the link for the US Patent and Trademarks Office – https://www.uspto.gov/
Good luck with your endeavors and protecting your company’s intellectual property