If you are in the business of ideas, which these days can include pretty much anyone with internet access, then you may find yourself wondering about the different mechanisms for protecting your Intellectual Property. The following is a very basic and general overview of the different types of IP Law protections available.
The protection offered by copyright is one of the most long lasting, which extends at least 70 years beyond the life of the author (with some variations). However, copyright is generally limited to exact replications of the subject matter copyrighted. Thus, variations on the subject matter may not be protected, particularly if subject to one of the categories of fair use. Copyright protection covers:
- original works of authorship
- can include almost any form of tangible creation: drawings, paintings, photographs, furniture (though function must be separable from design), writings, films, etc.
Trademarks are generally meant as a way to ensure the authenticity of a brand or product. The protection offers the ability to ensure that the consumer is not confused as to the source of the product, or regarding any sort of endorsement. Depending on the protection, it can sometimes be limited to geographic area or market.
Trade dress is an offshoot of trademark, and deals mostly with the packaging that a product comes in. For example, the box a Barbie is presented in is one of the most iconic examples of trade dress. It is actually one of the bases upon which Mattel sued the creator of the Bratz dolls.
Patent Law is an area of the law whereby an inventor, through the painstaking process of obtaining a patent, is granted with monopolistic protection over their invention for a term of years (currently 14-20 years from filing, depending on the type). This protection includes a prohibition against making, selling, using, or basically doing anything with the patented technology without the owner’s permission. In order to be granted a the protection, an invention must be new, useful, nonobvious process, machine, manufacture, or composition of matter (or useful improvement thereof). The tradeoff, of course, is that through the process of applying for the patent, the inventor completely discloses and explains the invention, essentially granting complete access to the technology once the patent expires. (Over the counter medications, anyone?)
There are three different types of patents available:
- Utility–more common type of patent, anything from widgets to shamwows to chia pets
- Design–the design must be separable from the utility of the thing, also purely useful articles (such as clothing), are not patentable
- Plant–must be able to replicate the plant from the seeds patented
The protection provided under Patent Law is absolute. This means that no one may replicate the technology, even if they independently came to invent by their own means. There are further protections for designs that attempt to circumvent the protection by “designing around.”
Trade Secret is one of the more intriguing areas of IP Law, in that its protection relies almost entirely on the subject matter of the protection remaining a secret. The law builds up protections for people who unlawfully attempt to reveal the secret, referred to as misappropriation (such as has been the case with Coca Cola and Pepsi Cola, for example), but beyond that, there is no real published protection. Thus, unlike the other areas of the law, Patent Law most obviously, the holder of the trade secret does not reveal what it is that they are protecting. By concealing the information, the owner believes that they have a better chance than revealing everything for the monopolistic protection that Patent Law offers for a term of years.
If you would like to learn more about how to protect your portfolio, talk with an experienced Intellectual Property Attorney today. Remember that as soon as you share an idea with anyone else, you may have started the ticking clock in terms of your ability to secure protection.
Lastly, an interesting fact learned on our first day of Patent Law: Pez dispensers are one product that is subject to protections under Copyright, Trademark, and Patent Law. Keep that in mind the next time you pick up one of your favorite characters!
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