The CueCards blog posts originated from a desire to provide a base line knowledge of IP issues. It has been exciting to see intellectual property (IP) issues become more mainstream with frequent references in popular culture and movies. Despite the increased awareness, many business owners, entrepreneurs and others that seek IP services are unsure of the best type of protection for their creations; the practices needed to ensure protection and the practices needed to place them in the best position to deter others or enforce their rights. When I advise clients, a good deal of time often is spent educating them on these basic concepts and creating good IP habits. Knowing how cost sensitive all businesses are, my thought was that I could share core concepts in a series of blog posts to help businesses hit the ground running when meeting with IP counsel.
Flash forward three years and the CueCards blog posts have grown to share practical stories, legal updates and some higher level strategy. Much of this growth stems from the questions and comments that I get as a result of these posts. During this moment of reflection, I thought it would be good to cover some of the basics again and invite input on the IP topics that are top of mind for everyone today.
Intellectual Property Protections:
Trademarks - A trademark is any device used to identify the source of a product or service. Most businesses will use a name or a logo to identify themselves as the source for products and services. However, logos, sounds, product shapes, color, smells and icons can all be used and registered as trademarks. The following table highlights some examples:
In the U.S. trademark rights are based on use and therefore basic rights may exist wherever a trademark is used, however, federal trademark registration provides nationwide coverage as long as the trademark is used in interstate commerce. A trademark registration can be held indefinitely provided that it continues to be used and renewals are timely filed.
Copyright - Copyright protects original works of authorship including literary works, visual art, computer programs, three dimensional art, automated databases, and sound recordings.
With the increasing importance of the internet and social media in marketing, most businesses have become frequent publishers of text (literary works), images and video (visual art) and podcasts (sound recordings). While in the U.S., an author is not required to register a work to have copyright protection, registration has benefits and is required for enforcement. The term for copyright is life of the author plus 75 years or 100 years for company owned copyrights.
Patent - A patent protects new and useful inventions. There are three main categories of patents in the U.S.: 1) utility patents - protecting functional aspects of inventions; 2) plant patents - protecting asexually reproduced a distinct and new plants, other than a tuber propagated plant or a plant found in an uncultivated state; and 3) design patents - protecting the ornamental features of products and devices. To show that something is new involves demonstrating that it is not publicly known or obvious based on publicly available information. An inventors own acts can destroy patentability, if the inventor uses or sells the invention for more than a year before filing for a patent. Other countries are less forgiving and consider the invention unpatentable once it is publicly used or sold. Consequently, if patent protection is being considered, it is important to meet with IP counsel before any information about the invention is made public. Utility patents are held for 20 years from their first filing date subject to maintenance fee payments. Plant patents also last 20 years from their filing date, but are not subject to maintenance fees. Design patents last 15 years from their issue date and do not require maintenance fees.
As may be apparent from the examples and the descriptions, multiple types of protection may be applied to a single product. For example, it is common for a new product to require utility patent protection to cover its functional innovations and design patent protection for its aesthetics. If the unique aesthetics of the product evolve to identify the product's source, a trademark registration can provide more permanent protection. Copyright protection should not be overlooked or underestimated. In an online setting, copyright offers the ability to quickly take down infringing content.
Copyright was recently in the news with the Supreme Court's ruling in the Oracle v. Google copyright infringement case. What areas of IP are of greatest interest to you? Are there any IP topics that you would like blog posts to cover? Please contact me and let me know. Thank you for your input!