© McKee, Voorhees & Sease, P.L.C.
801 Grand Avenue Ste. 3200
Des Moines, Iowa 50309
www.ipmvs.com
515-288-3667
Intellectual Property 101
Intellectual property is probably one of the most confusing areas of the legal profession. Who needs it? Isn't it just for inventors? What's the difference between a trademark and a service mark? What do copyrights cover?
While intellectual property may seem quite complex, if you are a scientist, business person, author, artist, or just someone who came up with a "good idea to build a better moustetrap", then intellectual property law is something you need to understand. In short, intellectual property is any item of the human intellect that is unique, novel or unobvious, and likely has some value in the marketplace.
This brochure outlines several key areas of intellectual property law to get you in the know.
A patent is a governmental declaration that an invention or process is new or innovative enough to grant an exclusive right to manufacture, sell or otherwise use the invention for a set period of time. A patent may be issued for a variety of inventions - pharmaceuticals, technology, a methodology for software or a new distinctive product. There are three different types of patents:
1. Utility Patent - any new and useful method, process, machine, device, manufactured item, chemical compound or plant.
2. Design Patent - new, original or ornamental design for an article of manufacture granted to protect the appearance rather than the function of a product.
3. Plant Patent - the invention or discovery of a plant variety that can be asexually reproduced
A patent gives you the right to stop others from using your invention, and take legal action should others infringe upon these rights. Alternatively, you can choose to license others use it under agreed terms. In other words, a patent provides protection for the owner (the "proprietor") of an invention.
Eventually, the inventor, proprietor and society as a whole will benefit from this advance in technology, research development or process. Once the protection time has passed, the invention is available to the public to use freely.
|
|
A trademark is a word, name, symbol or device which is used to indicate the source of the goods and distinguish them from others' goods. A service mark is the same as a trademark except that it identifies the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO.
Use of "TM" versus ® - Anyone can use a "TM" after their product or service letting the public know that they are using a certain word or words as their trademark. If you only sell this product in Iowa, you can register this trademark with the Secretary of State. A trademark associated with goods and services offered nationally is best protected by federal registration. Once registered nationally, the business is allowed to use an "R" with a circle around it ®.
|
|
|
Copyright is a form of protection provided to the creators of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office which is part of the Library of Congress.
|
|
Trade dress is a distinctive, nonfunctional feature, which distinguishes a merchant's or manufacturer's goods or services from those of another. The trade dress of a product involves the "total image" and can include the color of the packaging, the configuration of goods, etc... Even the theme of a restaurant may be considered trade dress. Examples include the packaging design or shape, color schemes and so on. This term has a broad definition making trade dress a good tool to protect your business.
To establish a right to your unique trade dress, it must be distinctive towards your business or product. This is accomplished by showing that the public associates your trade dress with a particular source. You can also claim trade dress protection if the public associates competitors' products with your trade dress and believes the source to be your company, causing a likelihood of confusion.
A trade secret may consist of any formula, pattern, device or compilation of information used in one's business, which gives that business an advantage over competitors who do not know or use it. It may be a chemical compound, formula, a manufacturing process, a pattern for a machine or a list of customers. It differs from other secret information in a business in that a trade secret is a process or device for continuous use in the operation of the business. |
|
