Wednesday, October 6, 2010

Patents, Copyrights, Trademarks...Oh My!

There are constant questions about the differences between patents, copyrights, and trademarks. Since I cannot say it better than Michele Schwartz of the law firm of Andrews Kurth LP, I reprint her article from Mondaq (01Oct2010) below:

Protecting Your Intellectual Property

Have you ever had an idea for a great product that would solve a pet peeve, or just make life easier or more pleasant? Many women have made millions from such light bulb moments. Just consider Spanx®, the patented footless pantyhose empire. Perhaps you should take that epiphany and run with it. In addition to writing a business plan, making a prototype and charming investors, one of the most important aspects of commercializing that idea is to protect any intellectual property associated with the product or concept.

So how do you protect your intellectual property once that light bulb goes on? Consider the three main types of intellectual property protection: patents, copyrights and trademarks.

Patents generally protect functional features of inventions, or in the case of design patents, ornamental designs for articles of manufacture. For patents, take dated notes on your idea and maintain confidentiality, not only to protect others from stealing the idea but also to preserve your rights if the invention is patentable. If you decide to share your idea with others, make sure a signed confidentiality agreement, sometimes called a non-disclosure agreement, is in place before revealing the idea. Once an invention is made publicly known, you have one year to apply for patent protection. If you decide to apply for a patent, consider a patent search. An attorney can advise whether a search would be worthwhile or whether it makes more sense to file an application. The patent process is tricky and is best handled by an attorney. It also can be expensive—be prepared to invest several thousand dollars in the process.

Copyrights protect original works of authorship fixed in the tangible medium of expression, including literary works, visual art (including designs on packaging), music, and pictorial and motion picture works. For example, copyright law protects your artwork, unique designs on fabric, your marketing literature or photographs. Copyrights subsist in a work upon creation and are owned by the author of the work unless the rights are assigned or transferred to another person. Beware if you have an outside ad agency or friend create artwork for your product, including photography. Obtain a written assignment of those rights or the rights will remain with the author, even if you pay for the work. You can obtain a copyright registration from the U.S. Copyright Office which strengthens your rights in a copyrighted work if you have to take legal action against an infringement. Whether your work is registered or not, always include a copyright notice on the work which consists of the symbol ©, the copyright owner's name and the year of publication of the work, meaning the year you first distributed the work to the public by sale or other transfer of ownership.

You will need to name your million-dollar idea. The name, logo, a slogan, even unique product packaging or shape (trade dress), or other manner of identifying your product, can be protected under trademark law. At the outset, search at least the U.S. Trademark Office records to determine if the mark is available. Once you start selling your product, you develop "common law" rights in the mark which are circumscribed to the geographic marketplace in which you sell your branded product. You also can obtain a federal registration for the mark, which provides nationwide rights regardless of whether you have shipped your product to all 50 states. Prior to obtaining registration, utilize a superscript TM symbol to identify the mark or logo as your own. After the mark is registered, you may use the symbol ® to indicate that you own a federal registration for the mark.

Consider all three types of intellectual property protection to protect the ultimate expression of your idea or concept. Though your idea or concept may not be worthy of patent protection, the original artistic design or the funky name or packaging used to market the product may be protected by copyright and trademark law, resulting in a valuable monopoly when consumers demand your product. Intellectual property rights are valuable assets considered by investors and potential buyers. If you have protected your rights, you will be able to maintain exclusivity and increase the value of your business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.

Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at

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