THOMAS, STEPHEN J. - PROTECTING YOUR INTELLECTUAL PROPERTY Part1

Stephen J. Thomas

“Intellectual property” is a legal term which refers to an ownership interest in certain intangibles. Intellectual property includes generally the broad areas of copyright, trademark, patent and trade secret. If you own a business, and have enjoyed some measure of success, have created an image for your business, created visual or written materials, have developed special processes, customer lists or other valuable information not generally available to the public, you probably own some form of intellectual property. What follows is a brief practical description of each of the main categories of intellectual property.

PATENT

A patent is entirely a creature of statutory law. The United States Patent and Trademark Office (“USPTO”) grants patents for inventions, designs or processes which, following a rigorous application procedure, are found to be original and unique. If you possess a patent, it is your obligation to prevent others from infringing upon the patent either by giving the infringing party notice and demanding that they cease and desist or (and if this first effort fails) by filing a lawsuit to enjoin the infringement and seeking an award of damages.

TRADEMARK

A trademark is issued by the USPTO to protect a distinctive trade or service name or mark. The most famous trademarks, such as Coca Cola’s and Nike’s, are aggressively protected by their owners. Trademarks are not granted for merely descriptive names or for marks confusingly similar to other trademarks.

Another aspect of trademark protection concerns the use of intentionally misleading or deceptive trademarks for the purpose of “fooling” the public into believing that one product is actually another. The Lanham Act, a federal statute, prohibits and punishes such deceptive practices.

COPYRIGHT

The Library of Congress is a repository for copyright registrations. Any written or taped material can be registered with the Library of Congress. The registration acts as evidence of the date of creation of the work so registered and affords certain additional protections related to the filing of a copyright infringement action.

Unlike the USPTO, however, the Library of Congress does not (and could not) review each of the many millions of items it receives for originality. If your original work has been infringed upon, it will be for the courts to decide whether your work is, in fact, an original work, and whether someone’s work has infringed upon yours.