Patents, Trademarks, and Copyrights

Patents, Trademarks, and Copyrights
By:  Michael Sanibel

It’s important to protect your business from others who may want to steal your valuable ideas and products.  The purpose of this article is to describe the different types of legal protections available and how they work.  While these protections perform similar functions, it’s important to understand that they each serve a distinct purpose.

Patents 

Patents are granted by the U. S. Patent and Trademark Office.  The first patent was issued to Samuel Hopkins for a new apparatus and process of making the fertilizer ingredient called potash.  It was personally signed by President George Washington on July 31, 1790.  

A patent is a property right granted to the inventor that is enforceable for a period of 14 years (designs) or 20 years (products) from the date of filing.  With the exception of certain pharmaceutical patents, it takes a special act of Congress to get an extension.  It gives the holder "the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States.”   

Once a patent expires, the property right is lost and the inventor can no longer exclude others from making or profiting from the invention.  One advantage of a patent is that it can be sold like any other piece of property.  It’s not uncommon for inventors to transfer all their patent rights to established companies rather than undertake the time and expense of making the product themselves.  This is usually done in consideration for a fixed fee or future royalty payments.


Trademarks  

A trademark can be a name, symbol, logo, or any device used in business that distinguishes your goods or products from those of another source.  Examples are McDonald’s hamburgers, its iconic golden arches, and Ronald McDonald.  A service mark differs from a trademark only in that it identifies the source of a function or service, rather than a specific product.  An example is a landscaper that uses his or her name as the service mark for their business.  It’s very common for the words "trademark” and "mark” to be used interchangeably.  

Trademark protection is available by registering the mark with the U. S. Patent and Trademark Office.  Once registered, the trademark grants exclusive rights to the mark and prohibits others from using it or any other mark that closely resembles it.  However, it does not prevent the production of the same products or services under a different mark.  The protection extends to both interstate and international trade and is valid for ten years from the approval date.  It can be renewed every ten years thereafter so long as it remains in current use.


Copyrights  

The Copyright Act of 1976 represented the first major revision to copyright statutes in the United States since 1909.  Much had changed over the years, including the advent of motion pictures, radio, and the recording of sound through various methods.  Copyright protection extends to all "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.”  

"Works of Authorship” are defined to include:

  • Literary works (books, magazines, newspapers, etc.)
  • Motion pictures and videos
  • Sound recordings (phonograph records, tape recordings, CDs, digital music files)
  • Sheet music, including lyrics and chords
  • Photographs, drawings, and graphic renderings
  • Works of architecture and sculpture
  • Dramatic works, pantomimes, and choreography
Copyright protection generally lasts for the life of the creator of the work plus an additional 70 years.  If the work was made for hire, anonymous, or pseudonymous, the protection lasts for the lesser of 95 years from its first publication or 120 years from its creation. 

The rights are exclusive to the owner of the copyright and include the performance, reproduction, distribution, and sale of the protected work.  The U. S. Copyright Office registers claims to copyrights and is the official office of record.



Fair Use Doctrine  

A copyright is not infringed if it is done under the umbrella of "fair use.”  This includes the use or reproduction of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  

The purpose of the use, the nature of the work, and the amount of the work used in relation to the whole are all considered when judging the applicability of this exception.  The effect that the use will have on the future value of the work in the marketplace is also a factor, especially if the use is commercial in nature rather than educational.
Summary  

If you have created something of commercial value, it’s important to protect it to preserve your legal rights and potential profits.  The type of protection you should get depends on several factors including cost, time, and the uniqueness and market value of your idea or product.  Obtaining a patent can be a costly and time-consuming process that may never actually pay off, and this must be weighed against the expected benefit.  

If you believe it may be worth the time and effort to file for a patent, trademark, or copyright, you should seek the counsel of an attorney who specializes in this area of the law.  He or she will be able to independently assess the viability of your claim and whether or not someone else has already staked such a claim.  If these options don’t pan out, consider protecting your discovery as a
trade secret which costs nothing and lasts indefinitely.

Michael Sanibel is a freelance writer specializing in business, marketing, personal finance, law, science, aviation, sports, entertainment, travel, and political analysis. He graduated from the United States Air Force Academy and is also licensed to practice law in California and New Hampshire.  Michael wrote this feature article exclusively for Debbie May.com (www.DebbieMay.com), an organization dedicated to helping small businesses succeed.