Is it a Trademark or a Copyright? – Meaning and Protection of Intellectual Property Rights

I see that entrepreneurs are often confused by what intellectual property means. Some think that it includes real estate/property. Others get them all mixed up – they want to patent a brand name, or trademark a product. As an Intellectual Property Law attorney, it is my job to explain to them that brand names are protected by trademarks and products by patents.

Entrepreneurs may develop and own brands, logos, taglines, designs, products, processes, formulae etc. in their business. All of this together is known as intellectual property. A business can own intellectual property in the form of trademarks, copyrights, patents, or trade secrets. Each intellectual property right can be secured through a formal registration process. The risk of not securing these rights is losing them to someone who registers them first and then fighting to get them back.

Here is a look at the different forms of intellectual property rights and what each one covers.

  1. Trademark

 

Trademarks protect any symbol that indicates the source or origin of the goods or services to which it is affixed. Trademarks can be:

  1.   Brand names (“Apple”)
  2.   Product names (“iPad”)
  3.   Logos/Symbols (Apple’s Apple logo)
  4.   Taglines (Nike’s “Just Do It”)
  5.   Drawings
  6.   Sounds (Chime of Apple’s Mac computers powering on)
  7.   Colors (Christian Louboutin’s red outsoles)
  8.   Scent (Verizon’s “flowery musk” scent that perfumes select stores)

The USPTO decides whether to grant trademark registrations. Trademark law and courts have set forth many factors that help the USPTO determine whether a trademark is registrable. For example, a weak mark that is generic will be refused registration, or similarity with other existing trademark applications or registrations will bar registration. Once registered, it confers federal protection over a brand, logo etc. i.e. it gives countrywide protection. A registered owner of a trademark can then use ® to notify others that they have a registered trademark.

  1.               Copyright

Copyrights protect original artistic, literary and creative works such as, paintings, sculptures, architectural works, photographs, graphic designs, fabric designs, jewelry designs, books, written works, software, and websites. In order to have copyright protection, each work must be fixed in a tangible medium of expression. Mere ideas cannot be protected.

A copyright automatically attaches to artistic and creative works once they are created. Registration with the U.S. Copyright Office enables enforcement of copyrights against those who copy registered works. The standard for copyright registration is a minimum degree of creativity. But it excludes from its purview useful or functional items, such as, clothing or furniture.

  1.               Patent

Patents protect novelty or inventions, such as, biological, mechanical, internet, games, jewelry. Patent registration provides exclusivity in the market and prevents competition for the time that the patent registers. Utility patents are valid for 20 years from the date of patent application and design patents are valid for 15 years from the date of issuance.

  1.               Trade Secret

Trade secrets are valuable assets proprietary to businesses. They can be recipes, formulae, marketing techniques, customer lists, business methods or anything that gives the business an opportunity to obtain an advantage over competitors who do not know it or use it. This is the only form of intellectual property right that does not require registration. In order to maintain trade secret protection, it must be kept secret by having a trade secret protection plan, educating employees, and having non-disclosure agreements in place.

While intellectual property rights seem neatly compartmentalized, there is some overlap. For example, while a logo may serve as a trademark indicating the source of the products, it can also be copyrighted because it is a creative/artistic work. There are many nuances to intellectual property rights and entrepreneurs should consult an attorney to determine the most strategic way to protect them.  

At Nupur Shah Law, we help business owners to determine the best form of protection available for our clients’ intellectual property. Call us at 646-820- 1366 or email us at nupur@nupurshahlaw.com. I am happy to have a complimentary conversation with you on how to secure your rights.

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