A crow bar works best when being used to pry something open, and not when it’s being used as a hammer. The same is true for intellectual property rights. Different types of intellectual property rights provide different types of protection. There are four types of intellectual property rights: trademarks, copyrights, patents and trade secrets. Each one of these areas has its own costs, terms, criteria for what is protected, how it is initially protected, and what steps have to be taken to maintain that protection. While there is some overlap as to what each type of right can do, each right is used most effectively when used for its intended purpose.
Trademark and Service mark laws protect marketplace identity. Trademarks and service marks are typically thought of as company or product names; but they can also be logos, tag lines, smells, colors, and sounds. The law prohibits a second party from using a mark that is confusingly similar to a mark already in use in connection with particular goods or services. Trademark and service mark rights are acquired by using a mark to promote or sell particular goods or services. Common law rights mean that a mark has not been registered anywhere. While common law rights are good rights, they can be difficult and expensive to prove.
In addition to common law rights, there is both a state registration system and a federal registration system. State registration systems can be useful in documenting claims to a mark, establishing dates of first use, and helping others to avoid choosing your mark. State registrations are usually handled by a Secretary of State’s office and filing fees generally run between thirty and fifty dollars per classification.
A federal registration is considerably more powerful than a state registration. Federal registrations grant rights on a national basis. The examination of a federal application is handled by the United States Patent and Trademark Office and is more involved than an examination at the state level. State registrations are usually granted within 1 – 2 weeks. Federal registrations commonly take 9 – 12 months to issue. Registrations are good for ten years, and can be renewed for as long as the mark continues to be used.
Copyright law protects the expression of an idea fixed in a tangible form. Copyrights are typically thought of as protecting artistic works such as music, paintings and books. However, copyright also protects software code, compilations of information and architectural works. The law prohibits a second party from reproducing, distributing, displaying, or performing the original work and from creating a derivative work from the original work. Copyright exists automatically in a work, but additional benefits are given to parties who register their works with the Copyright Office. The life of a copyright registration depends on whether the copyright owner is an individual or a company. The filing fee for a copyright registration is thirty dollars.
Patent law protects ideas. A patent holder receives the right to exclude others from using, selling or making the claimed invention. There are three types of patents: design, utility and plant patents. A design patent lasts for fourteen years from issuance and covers the ornamentation of a utilitarian object. A utility patent covers processes, machines, manufactures, and compositions of matter. A plant patent covers asexually reproduced, distinct and new varieties of plants. Utility and plant patents last for twenty years from the date of filing. Patent terms cannot be renewed.
Patent rights are obtained through the United States Patent and Trademark office. Before rights are granted, an Examiner from that office must determine four things. First, the examiner must determine that there is an invention (e.g. artistic works are typically not inventions). Second, the invention must have utility (e.g. it must be useful for a known purpose). Third, the invention must be novel (e.g. not known or used before). Fourth is whether the invention is obvious. (If a person of ordinary skill working in the field of the invention would consider the idea, then the idea is obvious, and not patentable.) Filing fees and prosecution costs generally run several thousand dollars.
Trade Secret law protects ideas, methods, customer lists, processes, formula, and other materials that have economic value because the information is not generally known. If secrecy can be maintained, trade secret protection can be both flexible and powerful. The formula for Coke is an example of a trade secret. There is no registration system for trade secrets. Nor is there any pre-defined limit to the length of a trade secret. Trade secrets last as long as there is economic value and the information is kept secret. Trade secret rights are acquired and maintained by taking steps to keep the claimed information secret. Depending on the secrecy measures taken, the cost of trade secret protection can be very low.