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How does a trademark differ from patent and copyright?

Trademarks, copyrights, and patents are all forms of intellectual property, each of which have different forms of property, requirements, and sections of law that protect them. A brief overview of all three forms of intellectual property is discussed below.


TRADEMARKS

Trademarks are a form of intellectual property that help distinguish goods and services within the marketplace.

Trademarks are designed to inform potential buyers (i.e. the public) WHO makes the goods or services on sale. The Restatement of Law (Third) Unfair Competition §9 defines a trademark and service mark as follows: A trademark is a word, name, symbol, device, or other designation, or a combination of such designations, that is distinctive of a person’s goods or services and that is used in a manner that identifies those goods or services and distinguishes them from the goods or services of others. A service mark is a trademark that is used in connection with services.

To get trademark protection you use a trademark in connection with the sale of goods or services. Using a trademark in connection with the sale of goods or services without registering the mark with the United States Patent Office (USPTO) may provide you with common law trademark protection. If you register the mark with the USPTO, you received federal trademark protection.

Expiration Date: NONE, as long as you maintain continual use of the trademark your protection will not expire under common law. Your federal trademark protection may expire if you do not maintain your registration with the USPTO. Under federal law, a Federal trademark registration lasts for ten (10) years but is renewable. Each renewal provides you with an additional ten (10) year period with no limit on the number of renewals. Even if your federal registration lapses, as long as you maintained continued use of the trademark, you can reapply for federal registration.


COPYRIGHTS

A copyright protects an original work of authorship. Any original work of authorship is eligible to be copyrightable subject matter unless Congress states otherwise. 17 U.S.C. 102: Subject Matter of Copyright provides: Protection subsistent in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

An original work has two Constitutional requirements: (1) must have independent creation and (2) minimal creativity.

Authorship simply means that it was created and not copied. There can be more than one author of a copyright. When the work is prepared by two or more authors (absent an agreement otherwise) provides each author has equal rights that can be used independently and jointly.

Finally, fixed in a tangible medium of expression provides for two ways works can be fixed: (1) physically fixed (like a book) or (2) temporarily fixed (like a virtual video game). Either way it is something that can be copied and recreated which gives it copyright protection.

Ultimately, copyright protects your right to reproduce, distribute, perform, or display your work or to create other works based upon it. The work is protected by copyright as soon as it is created, but it can also be registered with the U.S. Copyright Office which will provide additional benefits. Notably, it MUST be registered in order to sue for a copyright violation. (i.e. you can automatically have copyright protection but it can’t be enforced until you register it.)


Section 102(a): provides a non-exclusive catalogue of things that are copyrightable:

o (1) literary works;

o (2) musical works, including any accompanying words;

o (3) dramatic works, including any accompanying music;

o (4) pantomimes and choreographic works;

o (5) pictorial, graphic, and sculptural works;

o (6) motion pictures and other audiovisual works;

o (7) sound recordings; and

o (8) architectural works


What is NOT covered under copyright:

o Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries (§102(b))

o Recipes

o Useful articles

Expiration Date: As a general rule, for works created after January 1st, 1978, copyright protection lasts for the life of the author plus an additional 70 years. After a copyright expires, it enters the public domain.


PATENTS

A patent protects an invention for a limited period of time. In other words, it creates a temporary monopoly. That temporary monopoly is provided to the inventor for the public disclosure of the invention. This creates incentives for others to create and improve upon the invention in the future. It is also incentives inventors to spend the time and money creating and researching inventions which ultimate enter into the public domain. You must file with the USPTO to receive a patent and once a patent expires, the invention becomes free for all to practice.

A U.S. patent can only be acquired by filing a patent application with the USPTO, a federal agency under the Department of Commerce. There are three types of patents: utility, design, and plant. Approximately ninety percent (90%) of all patents issued are utility. Unlike trademark law, there is no such thing as common law patent rights. Nor do patent rights subsist upon fixation in a tangible medium of expression as provided for by copyright law. (i.e. Patents don’t automatically exists. The USPTO has to issue it for it to exist.)

Expiration Date: Patents have a limited life. In most cases, the filing date begins the clock and the patent expires 20 years from that date. There are some exceptions to this rule but in the vast majority of cases this timeline is the one that applies. After the patent expires, it enters the public domain for all to use.


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