New York Real Estate Lawyer Blog
The Hudson River villages are full of talented people who are looking to protect the fruit of their creativity. Many times, however, people are confused by the different types of “intellectual property” that exist, which laws apply, and whether they can actually protect their creative ideas, designs, or other work. What are the differences between trademarks, copyrights and patents, and how can you protect them.
A trademark is identifies the source of a particular “good or service.” Most often, a trademark is a word (or a series of words), a logo or picture, but trademarks can also be sounds, colors, devices or even the way something appears. For example, a restaurant can have a trademark for the way it decorates or individual features of how it presents its food. Trademarks are geographic in nature, meaning that someone with protection in the United States may not have the same trademark in Canada, China, or elsewhere. Trademarks result from the of use (or intended use) of the mark in commerce and does not necessarily need to be registered with the U.S. Patent & Trademark Office to have enforceable trademark rights. As with any legal right, legal protection and filing brings certain rights and obligations, like statutory damages or the obligation to chase after infringing products.
A servicemark is simply a trademark that is used in connection with services instead of goods. If you wish to use a particular trademark, it is wise to conduct a trademark search prior to beginning such use. The search will enable you to determine whether someone else is using a similar mark for similar goods and services to ensure that you do not infringe someone else’s mark once you begin your use. In today’s market, where goods and services are hawked on line, on the street corner, and almost everywhere, there are millions of potential conflicts, which require careful legal analysis. It is advisable to have an attorney assist you to conduct the trademark search and to handle the application process with the US Trademark Office if you (and your attorney) decide to file. A trademark will not expire if the owner continues to use the mark in commerce in connection with the goods or services specified. Once a mark is registered, however, it does periodically need to be renewed.
A copyright provides protection for original creative works. Examples of copyrightable works include literary, dramatic, musical, architectural and a variety of other works. Copyright gives the owner the exclusive right to reproduce the copyrighted work, to prepare derivative works of the copyrighted work (derivative works are works that are based on the original), to distribute copies and to perform or display the copyrighted work. As with trademarks, a copyright registration certificate is not necessary in order to have copyright protection in a particular work, but it can be helpful. Copyright registration is simpler than trademark registration and generally can be done without an attorney (visit the Copyright Office website at www.copyright.gov ). Unlike trademarks, copyright protection expires. The exact term of copyright protection depends on when the work was created and by whom (individual verses corporation).
A patent is a form of intellectual property protection for an invention. A patent is issued by the Patent and Trademark Office. A term for a new patent is 20 years commencing on the date that the application for the patent was filed. A patent gives its owner “the right to exclude others from making, using, offering for sale or selling” the invention in the United States or importing the invention into the United States. A patent attorney can assist an inventor to apply for patent protection in the United States. The engineering, science, and legal intricacies even require the patent attorney to take a separate bar exam, being licensed differently from other attorneys.
Ideas for the next great invention, the next great tag line, the next great business venture are not generally enforceable unless reduced to one of the forms mentioned above. That said, depending upon your intellectual property, there may be a way to “protect” it for your own personal commercial gain.