Types of Intellectual Property Protection

So, you have a business and you just got a new logo.  You have heard about other businesses protecting their intellectual property, and you definitely want to protect yours, but what type of protection is right for you?

Or maybe you’re an artist or an author, and you just finished your latest work.  What do you need to do to protect your intellectual property in that work?  Are there extra steps you need to take to enforce your IP?

Or you are an inventor and you have invented a new device or way of doing something.  How do you protect your invention?  How do you keep other people from making money from your intellectual property?

To answer these questions, let us start by defining a few different types of intellectual property, what they each protect, and what rights each type gives to the owner.

Trademark

A trademark is a word, phrase, graphic, or combination of words and graphics, that identifies the source of goods.  Similarly, a service mark is a word, phrase, graphic, or combination of words and graphics, that identifies the source of services.  Commonly, service marks and trademarks are collectively referred to as trademarks.  Trademark protection gives the owner of a trademark the right to use the mark in commerce, and to stop others from using the mark or similar marks in commerce.

A federal trademark registration provides protection for an individual or business that uses a trademark in interstate commerce.  For individuals and businesses that uses a trademark, but only for commerce within a state, analogous (although more limited) protection may be obtained through a state trademark registration.

The first person or business to use a mark in commerce may obtain a federal registration for the mark.  Federal registration will enable that owner of the mark to stop others from using their mark or a mark that is confusingly similar to the registered mark.  The test for what makes a mark confusingly similar is whether a consumer would think that the product or service using the accused mark comes from owner of the registered mark.

Copyright

A copyright is a form of intellectual property that protects creative works that embody the expression of creative ideas.  Copyrights protect a work once it is fixed in a tangible medium.  Copyright protection gives the copyright holder the right to publicly display the work, to make copies of the work, to make derivative works based on the original work, and perform the copyrighted work (as in a song, dance, etc.).

When is a work fixed in a tangible medium?  A photograph is fixed in a tangible medium when the image is recorded on the film in a camera; a painting is fixed in a tangible medium when the paint is placed on the canvas; a song (or other phonorecord) is fixed in a tangible medium when the audio is recorded; a story is fixed in a tangible medium when the author writes it on paper.  Interestingly, there is no copyright protection in a live performance, although there is a copyright in a recording of the performance.

Computers and digital technology require an update to these concepts, because there is no film in a digital camera, no canvas in graphic design programs, no paper in a word processor, etc.  To answer how a digital work is fixed in a tangible medium, we can take the example of sound recordings, which faced this issue long before the introduction of home computers[1].

Sound recordings were historically made by recording physical indentations on a wax cylinder.  The advent of magnetic tape meant that the copy of the sound recording was no longer fixed in a tangible medium, in the sense that you cannot feel the recorded information on a magnetic tape.  However, a magnetic tape did make a copy of the sound recording that was able to be experienced by a listener at a later time, and copies of the original recording could be made.  In an analogous way, digital works are recorded as computer-readable information in the memory of a camera, smartphone, computer, etc.

Patent

Patents protect inventions.  The federal patent law tells us that anyone who invents or discovers a new and useful process, machine, article of manufacture, composition of matter may obtain a patent therefor.  What this means is that an inventor who invents a new way of doing something may be able to get a patent, an inventor who invents a new tool may be able to get a patent, etc.  Patents cannot be granted for laws of nature, natural phenomena, and abstract ideas.

A patent does not give the patent owner the right to practice their invention.  The inventor who receives a patent for their new and useful tool has the right to stop others from making or using the patented tool.  This is an important detail, because a patent may be issued for an improvement to an already-patented invention.

Conclusion

Do you have a slogan, logo, or brand you would like to trademark?  Do you have a creative work that you’d like to register for copyright protection?  Do you have an invention?  Give us a call, we’d love to schedule a time to see how we can help!

[1] Sound recordings were not protected under Federal Copyright law until 1972.