Patents, Trademarks, And Copyrights

Written by Joe Driscoll

November 25, 2009

Patents, trademarks, and copyrights are designed to provide protection for inventors, entrepreneurs, and authors. In fact, your work may already be a trademark or have a copyright. However, your patent protection may be providing little protection at all.

Trademarks, copyrights and patents are different. Each gives certain rights and protections to owners and creators. The type of properties and the type of protections granted differ in each case.

Trademarks are words, symbols, designs, or phrases that identify and distinguish your products from others. When used to distinguish a service that you provide, it is called a service mark. Trademarks normally appear on a product or its packaging while service marks are used in the advertising of a service.

The ownership of a trademark arises from the use of the mark and not from the act of formally registering the trademark. In fact, one of the requirements for filing for an official trademark registration is that the owner must already be using the trademark. Your special identification may already be a legal trademark.

Although you own your trademark once you begin using it and you are entitled to trademark protection at that time, if you register your mark, there are certain additional benefits. Most of these benefits are of value only if you are involved in litigation. You are entitled to use the trademark symbol ™ even though you have not registered your trademark. Upon registration, you are entitled to use the symbol ™® to indicate that your trademark has been registered.

There are four filing requirements for a registered trademark. A written application must be submitted to the Commissioner of Patents and Trademarks. The application must be accompanied by a drawing of the mark as it actually appears. Five specimens of the trademark used on actual labels, tags, displays etc. must be supplied. And finally, a filing fee of $200 must be submitted for each trademark for which you are making an application.

A copyright is legal protection for authors of original works including literary, musical, dramatic and other intellectual creations. Copyright laws give the authors certain exclusive rights to reproduce, alter, distribute, perform, and display their works. Copyright protection exists for both published and unpublished work.

Much the same as trademark protection, copyright protection does not depend on official registration. Copyright protection begins at the time of creation. The copyright becomes the immediate property of the author who creates the work in a fixed form.

Copyright registration is a legal formality to make a public record of the basic facts of a copyright. The law offers several inducements to encourage the owners of copyrights to register. Most importantly, it is difficult to sue for infringement without having first registered.

The procedures for registering a copyright are perhaps the simplest. A completed application, a $10 fee, and a nonreturnable copy of the work being registered is all that is required. While applications take time to process, the effective date of the registration is the date on which the completed application was received.

If you intend publish or distribute your copyrighted works, whether the copyright is registered or not, you are responsible to include a notice of the copyright. That notice should include the symbol © followed by the year of first publication and the name of the owner. Failure to include the notice can result in the loss of certain additional rights belonging to the owner.

Unlike trademarks and copyrights which belong to you whether you register them or not, a patent is a right granted by the government. The patent gives the holder the right to exclude others from making, using, or selling the invention described in the patent for 17 years.

There are three different types of patents. Utility patents are what we generally think of when we talk about patents. Utility patents cover inventions which function in a unique manner to produce a utilitarian result. Design patents cover the shape or design of an item. Plant patents cover reproducible plants such as flowers and crops.

To be granted any of the three types of patents your invention must be different from what has already been known to the public and its development must be have been “unobvious”. While patent rights can be sold or transferred, only the actual inventors can apply for a patent.

A common misconception concerning patents arises from the use of the phrase “patent protection”. Actually a patent provides no protection. It is an offensive, rather than a defensive tool. It merely gives you the right to sue someone that you allege to be infringing on your invention.

Because the patent process requires that you disclose all information concerning your invention, it lasts for only 17 years, and merely gives you the right to sue, many a small inventor is reluctant to file for a patent preferring instead to maintain their invention as a trade secret.

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