Don’t Even Think About a Patent on the Copyright of Your Brand
(Some general comments on intellectual property)
Intellectual property includes intangible assets that are tangibly expressed. Hopefully, you have created intellectual property by investing time, effort, and capital in your business and made your business unique, so you may differentiate your business in the marketplace and define a market advantage.
Generally under the law, protection is not available for your ideas or concepts. Rather, the use of an idea or concept, which is a reduction to practice or an embodiment, may be protectable. Intellectual property may broadly be grouped into three categorizes, namely, patent [your product], trademark [your identity], and copyright [expressions of creativity].
PATENT “What” you do, which may be your product, or “How” you do it, which may be your particular method or process, for example, may be appropriate for patent protection. A patent on your product may provide you an opportunity to distinguish your business in the marketplace and define a market advantage. More specifically, a valid United States patent provides the patent owner a right to exclude others from making, selling, or using in the United States, the patented invention as defined by a valid patent claim. Patents are issued country by country and offer protection only in the issuing country.
A patent does not, however, grant a right to make, sell, or use a product. Approval from the Food and Drug Administration may be required Regarding pharmaceuticals or other medical items, for example. Likewise, automotive products may be subject to National Highway and Traffic Safety Administration regulations and rules.
Generally, when patents are discussed, utility patents are commonly presumed the type of patent discussed. Utility patents are granted for any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, according to U.S. statute. A utility patent may have an enforcement period from its issue date to the twentieth anniversary of its effective filing date, provided that maintenance fees are timely paid.
There are three kinds of patents available in the U.S., namely, utility, design, and plant patents. The most common of these being utility patents and the least common being plant patents. Plant patents are granted upon application for a distinct and new variety of plant. Plant patents are not pursued often. In fact, I recall meeting only one person, a professor in Chicago, who would actually say that he regularly includes plant patents in his patent practice.
Design patents are granted under U.S. statute for any new, original, and ornamental design for an article of manufacture. Design patents generally do not pertain to utility, that is functional, aspects of an item and may be considered to apply somewhat strictly to the aesthetics of a product. Design patents may be enforced for fourteen years after their issue date. Maintenance fees are not presently required for a design patent.
TRADEMARK “Who” you are in the marketplace, your business or product identity, may be appropriate for trademark protection. The idea of “branding” is commonly tossed about as a relatively new concept of market advantage by attaching market value to a particular brand name. “Branding” may be considered a marketing term that may, from a strict legal perspective, merely recognize the value of establishing a trademark or acquiring a perspective that a trademark is an asset. Further, Branding may be purposely or proactively allocating market resources to a trademark such that an identified market impression is created and value is established in the trademark.
Trademarks identify a single source in the marketplace of particular goods or services. More specifically, a trademark may be any indicia, including text, a design [logo], or combinations of both. Trademark protection is rooted in tradition, known as common law, which may be said that specific conduct became accepted in society as being proper. The common law of trademark has become codified in the Federal Lanham Act of trademark statutes, as well as various States’ laws. In a “rule of thumb” perspective, trademark rights are established when a trademark is used and trademark rights follow a priority rule like “first come - first served.”
The standard of trademark infringement and thus availability of a trademark use, is “Likelihood of Confusion.” If a one trademark use is likely to be confused with another trademark use, then the trademark use may be considered to infringe and may not be usable. Some of a plethora of elements to consider include: the commercial impression of the two trademarks themselves, both visually and aurally; the goods or services with which the trademarks are used and how related the respective goods or services may be in the marketplace; the relative fame of each trademark; and the priority of each trademark, which one was used first. Also, the commercial impression of the trademarks is not to be in a side-by-side comparison, but in a disconnected relation, out in the market.
COPYRIGHT An expression of artistry, authorship, or other creativity may be appropriate for copyright protection, including, literary works, musical works (including lyrics), dramatic works (including accompanying music), choreographic works, pictorial works, graphic works, sculptural works, motion pictures, other audiovisual works, sound recordings, and architectural works. The present state of copyright law in the U.S. may be embodied as a rule of thumb that an author owns a copyright in his creation upon creation. Neither a copyright notice or copyright registration are required to own a copyright, so do not presume that you may borrow something just because it is not marked with a copyright notice. Popular impression seems to be that both notice and registration are required to establish ownership, however, so this expectation may be sufficient that one should always mark their creative work with a copyright notice as well as to proceed with registration. There are also legal implications to registering in a situation of actual infringement.
Two other prominent areas of copyright misunderstanding may include “fair use” and “work made for hire,” each of which is specifically addressed in federal statute. Fair use is rooted in a notion that some instances of copyright infringement may be excepted. The federal copyright statute identifies half a dozen specific categories of fair, excepted use that may grossly be said to fall into areas of academic use, news reporting, or research. Even when a use may reasonably fit in the specific categories of fair use, factors as to the commercial impact of the use are listed for considering whether a copying of a created work is an infringement.
Many people seem to have the concept of a “work made for hire” on its head, saying that they own a created work that they hired some one to create; they hired the work. Something to the contrary, however, a creative work made by an outside vendor or contractor is seldom a work made for hire. The point of interest in a work made for hire is that the one paying for the work is considered the author of the work.
The federal statute identifies only two categories of a work made for hire. A work made for hire is prepared by an employee within the scope of his or her employment. The “scope of employment” opens a can of worms as to defining that scope of employment and may often times lead to an employee’s activities at home and appearing to be off the job, being owned by their employer. Alternatively, a work made for hire may be defined by contract if the parties expressly agree in a prior writing, signed by all parties, that the work shall be considered a work made for hire AND if the work is specially ordered or commissioned as a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. These sub-categories seem to seldom apply outside of the various publishing businesses, however.
So - - how are you creative? In what you make or how you do your business? In your identity, image, or reputation? Or, do you simply have a need to express your uncontrollable creativity?
