IP LawAfter years of research and development, your company is finally about to launch a new “game changing” product. You know you need to protect this product, but where do you start? What do you name your new product, and how do you protect that name? These and other frequently asked questions often arise in new entrepreneurial ventures — whether for new businesses or new product lines for existing businesses.

Most business owners intuitively understand the value of their intellectual property. They understand that their products, brands and other ideas need to be protected, but can be confused by some of the “jargon” used in intellectual property law with words like “patent,” “trademark” and “copyright.” This post helps explain some of the key differences between patents, trademarks and copyrights.

What is a patent?

A patent is a legal right to exclude others from making, using, selling, offering for sale, or importing a patented invention for a fixed period of time. In the U.S., patents are exclusively under federal jurisdiction and are awarded by the U.S. Patent and Trademark Office in exchange for making public an enabling disclosure of the invention, and generally last for 20 years (15 years for design patents).

The theory behind patent law is one of incentivizing innovations. By awarding a limited monopoly over an invention for several years, the federal government creates a market incentive for innovation. Put another way, less money would be spent on research and design if there was no way to prevent competitors from appropriating the fruits of such research and design.

In the U.S., patents can be used to protect new, useful and non-obvious inventions or discoveries of processes, machines, manufactures (i.e., products or other goods) or compositions of matter (i.e., new chemicals or other compounds). Patent law is so broad, that it is often more helpful to define patent law by focusing on the opposite: asking what cannot be patented. Courts have explained that things like abstract ideas, purely mental processes and mathematical formulas or laws of nature fall outside the scope of patent law. This raises some issues for businesses trying to protect new software development, drawing the line between an “abstract idea” and software can be difficult and is a challenge we routinely face in our practice.

What is a trademark?

trademarkA trademark is some indicia of source or origin for goods or services which is protected for the purpose of safeguarding the consuming public. When we think of trademarks, we think about words and logos used to brand products or services. Indeed, the word “branding” comes from an early form of trademarks – when animals were physically branded with a distinct mark to identify and differentiate which farm owned them.

Trademark law also has a different focus, preventing consumer confusion, than patent law. Unlike patent law, which seeks to incentivize creativity, trademark law seeks to protect consumers. When a consumer walks into a store and buys a bottle of COCA-COLA®, the consumer should get a product made by the Coca-Cola Company: not a knockoff. Trademark law helps protect consumers by giving brand-owners (the party with the biggest vested interest in avoiding consumer confusion) the ability to enforce trademark rights against confusingly similar use by competitors.

While trademarks are traditionally associated with words and designs – such as the words COCA-COLA® or the unique red and white cursive font used by the Coca-Cola Company – trademark law can extend to protect many other indicia of source or origin. Product packaging, sounds – like a jingle on a commercial – colors, texture and even smells can all be used as part of a business’ branding efforts. Given the right circumstances, all of these things might be protectable as a trademark.

In the U.S., trademarks are governed by both federal and state laws. Federal trademark registrations carry many benefits, including nationwide coverage – making them attractive to almost every client. That being said, various state registrations can also carry many benefits. Florida’s trademark registrations, for example, often provide an easier way to recover attorney’s fees in litigation. Thus, many clients try to secure both federal and state registrations.

What is a copyright?

copyrightA copyright is a legal right to exclusively reproduce, prepare derivate works, distribute or publicly perform a creative work for a fixed period of time. A copyright, as the root word “copy” suggests, gives the owner a right to prevent unauthorized copying of a registered work. This can often create a lot of factual issues about whether or not something was actually “copied” or was merely independently created by an accused infringer.

In the U.S., copyrights are exclusively under federal jurisdiction and are awarded by the U.S. Copyright Office in exchange for filing a public copy of the copyright work (called a “deposit”). The term of a copyright varies based on a number of factors; including where and when a work was first published. For new works originating in the U.S., copyrights last for: (a) the life of the author plus 70 years; or (b) for corporate works, 95 years from the date of first publication or 120 years from the date of creation, whichever comes first.

While copyright law protects many “traditional” creative works (such as books or sheet music), copyright law can also protect many other creative works such as photographs, paintings, sculptures or even some architectural drawings. One of the most commonly overlooked areas of intellectual property protection are the copyright rights in product packaging, promotional photographs. All products have packaging, and nearly all products have product photographs which sellers put online. All of this can be protected and used to help stop competitors from “knocking off” products: but few businesses realize this until it is too late.

Those needing assistance with patents, trademarks or copyrights matters may contact me at luca.hickman@henlaw.com or by phone at 239-344-1307.