More and more, the words “copyright,” “trademarks,” and “patents” come up in our daily lives. As a business owner, inventor or artist, you know that these words must have some relevance to your work, but may not know which one applies and when.
Often mingled with these terms are other words, such as “ideas” and “fair use,” which can mean one thing in normal English and yet have another meaning when used in the context of copyright, trademark or patents. This article will give you a short primer on what activity is covered by each term and how they are distinguished one from the other.
“COPYRIGHT” basically protects the expression of an “idea.” So, if you have a great “idea” and you do not want anyone to steal it from you, the copyright law will not offer you protection. Rather, to protect an idea, you will have to rely on patent or trade secret laws.
What do I mean by the phrase “the expression of an idea?” That means the way in which you make your “idea” have a concrete form so that others can perceive it. For example, you may have an idea about a storyline for a comic book. The idea of the underlying storyline (boy meets girl) is available for others to use. What they cannot do is copy your method of expressing that storyline. If you found that another person also published a comic book that used similar or identical phrases as your characters spoke or that the appearance of their characters was very similar or identical to the drawings of your characters, then you might have a case for copyright infringement.
While copyright law alone will not protect a basic idea from anyone else using it, there are a number of ways that the various intellectual property laws can work together to protect the individuality of your product. In the case of the comic book example, there are several elements that go into the creation of the comic book, i.e., the words spoken by the characters; the art used to show the characters; the design and packaging of the comic book. Each of these individual elements may on their own have copyright implications. Moreover, depending upon how else you use the characters, they may also be considered a trademark . Think of “Mickey Mouse.” The design and look of Mickey is protected by copyright. But his use as an indicator of a source of a product, like toys, gives Disney the added and more long lasting protection of trademark law.
What happens when you want to use someone else’s words or art in your product? Many people think that if I use only a little, that will amount to a “fair use” and there will be no problem. However, the concept of “fair use” in copyright law is very specific in that the use you make of someone else’s work has to pass four tests before it would not be found to be a copyright infringement.
Let’s review the four tests. If you will make money from the use of another’s copyrighted work, you will fail test number one. Are you borrowing from a highly creative work or a work filled with facts and data? If you are taking from the former as opposed to the latter, you will flunk the test. Are you taking a great deal of material or just a sentence or small portion from a larger drawing? Even if it is a small fraction relative to the size of the entire work, if it turns out that what you took is the core of the work, you have crossed the line. Will your work take away from business opportunities of the owner of the work from whom you borrowed the material? If they can point to how they are losing money, again you are out of luck.
“TRADEMARK” refers to the indicator of a source of a product or service. It is a form of shorthand which the public perceives as indicating the originator of a product or service they want to use or buy. Once you have a trademark, you want to protect it from other businesses using a mark which will confuse the public into thinking that they are going to you when in reality they are going to your competitor. Trademark law offers you the kind of protection to prevent such unfair competition.
But what can you use as a mark? In some cases, a person’s name can become a trademark. However, if you are starting out with a new business and you use your own name, it is not a trademark. Only after you have used it to the point where it loses its significance as a name and becomes instead a shorthand indicator for your product or service, will a name be considered a trademark. Think of “Dell” for computers and “McDonald’s” for hamburgers.
Other examples of indicators that are used as trademarks are: a series of letters like “NBC”; pictures like Sunmaid’s girl with grapes; designs like Burberry’s plaid and symbols like Nike’s swooch.
In most cases, the way an indicator reaches the status of a trademark is through continued and systematic use in connection with the specific goods or services being promoted. You would be well advised to use whatever indicator you consider your trademark in as many ways as you can in association with your goods or services.
The best way to identify a trademark is to reach beyond what immediately comes to mind. Too often new business owners come up with marks which lack any originality. Rather, they want the mark to identify clearly what goods or services they are offering. But the truth is, so does everyone else. That being the case, the law will not give you a monopoly on how we all describe things. So, “Bright” or even “Brite” for a dry cleaning establishment is not going to be a trademark.
By taking the plunge and arriving at a mark that suggests your product (like “Joy” for dish detergent) or has nothing to do with your product (like “Apple” for computers) or is a totally made up word (like “Kodak” for photography), you develop a strong mark. It makes it harder for anyone else to come into your business territory and thus helps separate and give you the space for development that you want and need.
There is some overlap between trademarks and copyright in that to the extent the mark has some creative design element to it independent of its use as an indicator of goods or services, it may also qualify for copyright protection. Whoever designs your mark may own that copyright. Therefore, it is imperative to obtain from that person an assignment of any rights they may have in the art work they have created.
PATENTS are a legal designation that gives the owner the exclusive right to exploit their ideas. So even if another person arrives at the same idea independently of the first person who registered the patent application with the U.S. Patent and Trademark Office (USPTO), they will be guilty of patent infringement.
However, to obtain a patent is a long and can be costly undertaking because the procedure is filled with many technicalities. The idea must pass a number of tests in order to be considered “patentable.” It must be novel, not obvious, and useful. Only the inventor or attorneys who have qualified for special designation by the USPTO are eligible to file for patent protection.
In reality, most people do not come up with patentable ideas. In many cases, they can nonetheless protect their ideas if they treat them as TRADE SECRETS. As the term implies, business owners must keep the idea a secret. One of the best known examples of this is the formula for “Coca Cola.” Unlike a patent which goes into the public domain for anyone to use after twenty years, a trade secret can remain locked away as long as the secret is kept.
How do you keep a secret? The best way is to have all who will come in contact with it to enter into an agreement beforehand in which they promise not to divulge the secret. This is called a “non-disclosure” agreement. That means that you ask anyone who may come in contact with the secret such as your employees, principals, clients, customers, and vendors to sign such an agreement. You also must take reasonable steps not to let the secret leak out. If you do these things, then if someone were to violate the secret, you would have a claim against them and may be able to enjoin them from such activity depending on the agreement you have arrived at in advance.
This is just a short run-through on the fascinating and extensive world of intellectual property law. The underlying concepts support important property rights which every business owner or creator of works should wish to protect.
