The Skinny on Copyrights, Trademarks and Patents
By Margaret A. Lourdes
Small business owners are, by nature, ingenious. It is common for them to develop unique slogans, names or logos to promote their products and services. A small business owner may even invent a unique item or discover a better way to design an existing product. Such creativity invariably leads to questions such as, “Do I need a patent or copyright?” and “What exactly is a service mark or trademark?” In a nutshell, patents protect inventions, trade and service marks protect brands and copyrights protect artistic works.
A patent validates the ownership of a new product or ornamental product design. A patents “excludes others from making, using, offering for sale or selling” the inventor’s creation [without his consent].”
A new product invention would fall under a “utility patent.” A new ornamental design, such as the unique placement of vehicle fog lights, would fall under “design patents.”
Patents are generally valid for 20 years after they are registered through the United States Patent and Trademark Office (USPTO). If a party violates your patent, you can seek damages in federal court for patent infringement. Although the USPTO does not require you to produce a physical prototype for patent purposes, you are required to submit a detailed application describing your invention. Generally, you must provide enough specificity to allow an expert to recreate your product by simply reading your plan.
Trademarks and service marks
A layperson may commonly use the term “mark” or “trademark” when also referring to service marks. However, it is important to know that there is a technical difference between trademarks and service marks.
A trademark, unlike a patent, does not include a product or product-related design. A trademark protects names, symbols and particular words used in marketing. For example, a jeweler creates a unique necklace and calls it the “Infinity Collar.” He may trademark the name “Infinity Collar” to protect the unique identity it gives his product, the necklace. Service marks are similar to trademarks. However, the key difference is a service mark, as the name suggests, relates to a service rather than a product. For example, a shipping company, which provides shipping services, may wish to obtain a service mark to protect its marketing phrase, “Lightning Fast Shipping.
Trademarks and service marks exist under federal law and generally must be renewed after five years from their initial filings at the USPTO.
Copyrights offer federal protection for original, artistic works. Therefore, you may copyright such things as a short story, book, painting, musical piece or film. You must have reduced the work to a tangible form, meaning you cannot simply have an “idea” for a story, song or artistic creation. For instance, you can copyright a song once it’s on a recording, or a story once it’s written down on paper.
Copyrights are registered through United State Copyright Office. Like patents, federal copyrights give artists the “exclusive right” to produce, reproduce and distribute their artistic creations. A copyright registered after 1978 is generally good for the life of the author and extends to his heirs for another 70 years after his death.
Lastly, people can confuse domain addresses and names with copyright and trademark law. Web domains are online “.com addresses” which navigate customers to a business’s website. They are registered through private companies, such as Godaddy.com, rather than a government office. Interestingly, a domain name can overlap with marks. Therefore, it is important when choosing a domain name that you do not infringe on a registered trade or service mark. For instance, from our earlier example, imagine a shipping company obtains a service mark on the phrase “Lightning Fast Shipping. It then registers the domain name, “lightningfastshipping.com.” The fact that the registered domain name includes the service mark phrase likely triggers federal protection.
In sum, patents protect inventions, trade and service marks protect brands, copyrights protect artistic works and domain registrations reserve specific, online web addresses.
If you would like to know more about registering a patent, trademark or service mark, visit the USPTO’s website at https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-2.
For additional information regarding copyright protections, visit the US Copyright Office at www.copyright.gov .
As always, seek the advice of your own attorney to answer your specific legal questions.