INTELLECTUAL PROPERTY LAW covers many subject areas, including patents, trademarks, copyrights, trade secrets and unfair competition, and is applicable to any creative, technological or business endeavor.
Q: Can I patent a trademark for a copyright?
A: No, because each of these is a distinct property right which serves a specific purpose. An apt analogy for understanding intellectual property rights is modes of transportation. For instance, cars travel on land, planes travel in air and boats travel on water. Each of these is a form of transportation, but they are not synonymous, nor interchangeable, forms and each serves a different transportation need. The same applies to intellectual property rights. Patents protect inventions, trademarks protect brand names and trade identities, and copyrights protect original works of authorship.
Q: How do I know if I have any intellectual property?
A: Every business, from a sole proprietorship to a large corporation, has intellectual property in its trade identity, at a minimum, which may be protected by trademarks, trade dress, copyrights or a combination thereof. Many businesses also have trade secrets in their proprietary business information and processes. A trade secret consists of business information that has commercial value, provides an actual or potential economic advantage over others and is maintained in confidence. Trade secrets in the US are protected through contractual rights which are governed by state statutory and case law. Accordingly, to safeguard your trade secrets, it is imperative that you have appropriate contracts in place as necessary with your employees, suppliers, customers and other third parties.
Q: How can I protect my intellectual property?
A: Trademarks and copyrights should be registered, because the registrations provide the legal protection to enforce your rights against others and to recover damages from infringers. Inventions should be protected by a patent, otherwise, by operation of law you may be dedicating your invention to the public and forfeiting any rights to it.
Q: I'm an artist, not a business, so why should I care about intellectual property?
A: As an artist, whether a writer, painter, sculptor, musician, composer, or other creative type, you create original works of authorship which are subject to copyright protection.
Works of authorship include:
Musical works, including any accompanying words;
Dramatic works, including any accompanying music;
Pantomimes and choreographic works;
Pictorial, graphic and sculptural works;
Motion pictures and other audiovisual works;
Sound recordings; and Architectural works.
As the copyright owner, an artist has the exclusive right to:
Reproduce the work;
Prepare derivative works;
Perform the work publicly; and
Display the work publicly.
This bundle of copyrights provides artists with the necessary tools to commercially exploit and profit from their creative talents.
Q: I'm a business, not an artist, so why should I care about intellectual property?
A: Just like artists, businesses generate creative works all the time, whether they realize it or not, that can also be commercially exploited for profit. In turn, businesses need to be careful that they are not inadvertently infringing the intellectual property rights of others. Unintentional infringement often occurs when new brands are created or advertising campaigns are launched. Has a trademark availability search been performed for your new brand name? Was your new advertising campaign reviewed before it went live to ensure it does not run afoul of Federal Trade Commission advertising regulations? Does your new domain address infringe someone else's trademark rights? Does your web site or other promotional material contain content that infringes someone else's copyrights? It is better and less expensive in the long run to have these clearance activities completed before new ventures are undertaken.
Q: My company is already registered with the Secretary of State, so my trademark is covered, too, right?
A: Not necessarily. Legally, entity names, trade names and trademarks are distinct from each other and each offers a different scope of legal rights. To best protect your company's trade identity, it is recommended that you register not only your entity, but also your company's trade names and trademarks.