RICHARD A. RYAN
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Introduction to
Patents, Trademarks & Copyrights
PATENTS are legal property rights granted by the United States and most
foreign governments for inventions that enable the owner of those rights to
prevent others from profiting from the invention, without the owner's
permission, for the life of the patent. A United States patent, issued by the
United States Patent and Trademark Office (the "PTO"), gives the owner the
right to exclude all others from making, using and selling the subject matter
protected by the patent in the United States for a period of twenty (20) years
from the date of application. Although a patent's life is measured from the
date of application, the right to exclude all others only begins once the PTO
issues the patents. To obtain a patent, an inventor must file a properly
prepared application having a detailed description, drawings and claims for
his or her invention with the PTO. Once the patent application is filed, the
inventor can utilize the phrase "patent pending" on products that are made
from or which embody the invention. The PTO will review the patent
application for completeness and to determine whether the invention satisfies
the patentability requirements. Once the patent issues, the inventor can assign
or license his or her patent rights and enforce those rights against others who
improperly utilize the invention by infringing the patent.
Select For:
TRADEMARKS are property rights that pertain to words, slogans, logos
and the like that are used by a person or entity to identify and distinguish their
goods or services from others. When used with goods, these are technically
referred to as trademarks. When used with services, these are technically
referred to as service marks. Although trademark rights are automatically
gained by using a mark in conjunction with specific goods or services (the
scope of those rights being equal to the geographical use of the mark)
registration of the mark provides significant benefits for the owner of the
mark. Federal trademark registration requires use of the mark in interstate
commerce, meaning between two or more states or between the United
States and a foreign country, in association with the goods or services. If
used only in the state of California, trademarks and service marks can be
registered with the California Secretary of State. In contrast, trademarks can
be registered with the federal Patent and Trademark Office (the "PTO") prior
to beginning use of the mark by utilizing the Intent-to-Use registration
procedures. When selecting a trademark, the owner must select a name,
slogan or logo that is not likely to be confused with other registered or
unregistered marks that are in use for the same or similar goods or services.
Until the mark is registered, the TM identifier should be used with the mark.
After the mark is registered with the PTO, the owner can use the federal
trademark registration symbol of an "R" with a circle around it
COPYRIGHTS are property rights recognized by the United States and
most foreign governments that protect creative works, such as books, plays,
movies, songs, music, art, photographs, drawings, computer programs and
many other types of creative works. Copyright protection is granted to
works which meet the creative requirements and are original to the person
claiming the rights. A federally protected copyright in a work is obtained as
soon as the work is placed in a fixed form (i.e., written down, drawn, etc.).
Although registration is not required to obtain a protectable copyright in a
work, registration with the Copyright Office confers significant benefits on the
owner of the copyright. These benefits include the ability to enforce the
copyright in federal court and the ability to obtain attorney fees and statutory
damages (which can be very important) from a person who infringes the
owner's rights. The use of a copyright notice on the work prevents an
infringer from arguing that he or she is an innocent infringer. A proper
copyright notice includes the copyright symbol (the letter "C" with a circle
around it) or the word "Copyright" followed by the owner's name and the
year in which the work was created. The exclusive rights associated with
copyrights include the right to make copies, publish or perform the work and
make derivative works (which are works that derive from the original work,
such as a movie from a book).