Trademarks vs. Patents vs. Copyrights
April 20, 2022
Article I, Section 8 of the U.S. Constitution, in what has come to be known as the patent and trademark clause, promises: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
In light of that clause, Congress went on to enact laws regulating patents, trademarks, and copyrights and created the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office to oversee their issuance.
If you’re a business owner in or around Kansas City, Missouri, who needs information about protecting your intellectual property – or defending it against others who may try to infringe upon it – contact me at the Law Office of Julie Scott LLC.
Before my legal practice, I enjoyed a career in scientific research. With my first-hand experience, I understand the relevant national and state laws regarding intellectual property rights. I proudly serve clients in Kansas City, Columbia, Springfield, Rolla, Missouri, and the surrounding areas.
What Is Intellectual Property?
What the Constitution referred to as “science and useful arts” has come to be known as intellectual property. Individuals and businesses rely on intellectual property for their existence and livelihood.
In broad terms, intellectual property refers to creations of the mind, including inventions, literary and artistic works, designs, symbols, names, and images that are used in commerce. Trade secrets are another form of intellectual property. For example, the recipe for Coca-Cola is a trade secret, which legend says is locked away in a safe in Atlanta, Georgia. Trade secrets are often valuable information that a business has compiled and uses to help it compete.
Inventions and designs are eligible for patent protection. Works of art in whatever form are protected by copyright, with or without official registration. But, registration is often necessary to enforce a copyright. Names, symbols, and images that are used in commerce can be trademarked.
Trademarks generally belong to the earliest known user of a name, logo, or image. There are two types of trademarks. One is a common law trademark; the other is registered with the USPTO to receive universal protection.
A common law trademark often will be accompanied by the ™ symbol. Once a trademark is registered with the USPTO, the Ⓡ symbol can be used. Both are protected by law whether or not either symbol is used. However, a common-law trademark is only protected in the area in which it is used. And, using the appropriate symbol, either the ™ or Ⓡ , notifies potential infringers that the mark has been claimed by another.
For instance, if you open Midwestburgers in Kansas City and put a ™ after the name, your trademark will be protected in Kansas City only. If someone wants to use the same name in Chicago, that would be perfectly fine, and you could not prevent them from doing so. Alternatively, if you register Midwestburgers, it will be protected nationwide, and no one else can use it without your permission.
Another point to remember is that geographic addresses and generic terms cannot be trademarked. Everyone needs to be able to use an address to send mail. And, everyone needs to be able to use generic terms to communicate.
The Patent Process
There are three different types of patents in the US. Most patents are for useful machines or devices. These are utility patents. A utility patent is available to anyone who “invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.”
The other two types of patents are called design patents and plant patents. A design patent is granted to anyone who invents a new, original and ornamental design for an article of manufacture. Design patents are important in industries and businesses where the "look and feel" matters. For example, customers choose furniture and cell phones, at least in part, by how they look and feel when they touch and use the products.
A plant patent is granted to anyone who invents, discovers, or “asexually reproduces” a distinct and new variety of plant. Many of the plants that are available at large nurseries are protected by plant patents. The description tags with these plants usually indicate if they are protected by a plant patent.
Obtaining a patent bestows on the patent holder “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, as 35 U.S. Code states. This right of exclusivity is valid for a specific number of years. The number of years depends upon the type of patent that is issued.
In an ideal world, a patent owner uses this period of exclusivity to market and develop its customer base. And, during this period the patent owner develops customer recognition and loyalty by associating trademarks with the patented product. So that when the patent expires, the patent owner is known for its products through the associated trademarks and maintains a competitive edge even after a patent expires.
The first thing to know about U.S. copyright law is the types of works it protects. Basically, anything you can see, hear, read or watch is probably subject to copyright law. Books, journals, photographs, works of visual art and sculpture, music, sound recordings, computer programs, websites, film, architectural drawings, and choreography are all examples of copyrightable materials.
All original works are automatically protected by copyright law. If you publish a book, for instance, and neglect to register it and someone steals it, the onus will be solely on you to prove that you are the original author and that the other is the infringer. You have to prove the copyright belongs to you.
If you register your work with the US Copyright Office, then you have an official record of your authorship as well as the date of that authorship. Your protections are further extended and safeguarded by this registration. Like the Ⓡ symbol for a trademark, copyright registration allows the owner to use the © symbol.
The length of copyright protection has changed over the years. Currently, it stands at 70 years after the death of the creator or after the death of the last creator in a collaborative effort. For works done for hire, anonymously or pseudonymously, the protection lasts 95 years from publication or 120 years from creation, whichever is shorter.
Personalized Legal Service
If you’re looking to register or protect a trademark, patent, or copyright and you’re located in Kansas City, Columbia, Springfield, or Rolla, Missouri, contact me at the Law Office of Julie Scott LLC. As an experienced intellectual property attorney, I can help you protect your inventions, names, logos, and artistic endeavors and defend them against those who try to infringe.
Call me today to schedule a free consultation.