While not every company is entitled to patent or copyright protection, almost every business has a word, mark or symbol used to identify its product or service. This word, mark or symbol is a trademark or service mark eligible for state or federal trademark registration. All businesses have valuable IP to protect.
In my San Francisco IP and business law practice I frequently talk with manufacturers, distributors, restaurants, retailers and other service businesses who want to protect trademarks, service marks and logo designs. Software developers, technology companies and other inventors and creators may have software code to copyright, trade secrets and patents to protect. Creative works of all types (photography, books, music, film, architecture and other original works of authorship) should be copyright protected.
Intellectual property includes trademarks, copyrights, patents and trade secrets. In this post, I will describe the defining characteristics of trademarks and copyrights. In my next post I will explore patents and trade secrets.
Types of Intellectual Property
Trademark
A trademark or service mark is any word, mark or symbol used in commerce to identify the source of a service or product. It is imperative that you protect your trademark and/or service mark, as your customers and clients associate your brand with the quality for which you are known. Valid state and federal trademarks protect investments in time and energy building your brand and advertising and marketing dollars. Whether it is a company name, logo, distinguishing brand color(s), or the name of a signature product, it is essential to safeguard your IP by identifying and protecting your trademarks.
In the United States, one can obtain trademark rights by using the trademark and achieve certain legal advantages by registering it with the United States Patent and Trademark Office (USPTO). If an individual or company acquires trademark rights through use, this is called a common law trademark. Common law trademarks are only valid within the geographical area the symbol is used. When an identification symbol or word is registered with the United States Patent and Trademark Office, the symbol becomes a legally recognized federal trademark. State trademark registration is an option for those using their mark solely within one state, not in interstate commerce. State registration provides fewer advantages than federal trademark registration; however, the appearance of the mark in state databases and on subsequent third party trademark search reports can deter potential competitors from adopting your mark or a potentially confusingly similar mark.
Copyright
A copyright is an original work of authorship fixed in tangible form. Although federal registration confers certain legal rights, a copyright is protectable the moment it is created, whether the work is federally registered or not.
Copyright protection is a form of federal legal protection to those who create or compose original works, including literary, dramatic, musical, and artistic works, such as computer software, architectural drawings, photographs and musical recordings. The U.S. Copyright Act grants the owner of a copyright, independent of the original work being published, the exclusive rights to:
• Reproduce the work
• All derivative forms of the work
• All forms of distribution of the work
• Any public performance or displays of the work
Additionally, only the owner of the copyright may give permission to others to use their work.
Next, we will examine the characteristics of the two remaining types of IP; patents and trade secrets.
Sources:
United States Patent and Trademark Office
United States Patent and Trademark Office-Trademarks Home
California Secretary of State-Trademarks and Service Marks
Model State Trademark Law/CA. Business and Professions Code Section 14200-14202
United States Copyright Office
United States Copyright Office - Copyright in General (FAQ)
San Francisco trademark and copyright attorney Matthew L. Kabak has expertise in intellectual property protection including all aspects of the registration and enforcement of trademarks, copyrights and protection of trade secrets. Matthew Kabak has registered over 60 federal trademarks before the United States Trademark Office (USPTO) and has appeared in substantial federal litigation concerning trademark and copyright protection for San Francisco Bay Area entrepreneurs, corporations, LLCs and other businesses.
