So, you’ve created a product, service or work of art that you want to put into the stream of commerce. You worked very hard to create this product, service, or work of art and you want to make sure that it’s protected from misuse or infringement by others. What do you do?
You’ve heard all about Patents, Trademarks, and Copyrights, but which one is the best solution for your creation? Here are the basics about WHAT and WHY of Patents, Trademarks, and Copyrights to steer you in the right direction. This is just a simple introduction to Intellectual Property. We strongly advise you to consult an attorney before you make any final decisions to ensure that you’re making the right choices.
What is a patent? A patent is a right granted by the U.S. Government and issued by the United States Patent and Trademark Office (USPTO) to protect an invention. It grants certain property rights to the inventor and is issued for a term of 20 years. A patent is only enforceable in the United States, U.S. territories, and U.S. possessions.
The actual right granted by the “patent grant”, according to the USPTO, is “the right to exclude others from making, using, offering for sale, or selling” the invention in, or “importing” it into, the United States. Take note of the fact that what is granted is NOT the right to do something (in this case make, use, offer for sale, etc.), but the right to EXCLUDE others from doing those things with your invention!
There are actually 3 types of patents (as listed by the USPTO):
- Utility Patents, which are granted to anyone who invents a “new and useful process, machine, article of manufacture, or composition of matter”
- Design Patents, which are granted to anyone who invents a “new, original, and ornamental design for an article of manufacture”
- Plant Patents, which are granted to anyone who invents or “discovers and asexually reproduces any distinct and new variety of plant”
Where patents are granted for “inventions of things”, trademarks are granted for words, names, symbols, or devices “used in trade of goods” to identify “the source of the goods and to distinguish them from the goods of others.”
A service mark is another type of trademark that applies to a service rather than a product. The terms “trademark” and “mark” can refer to either trademarks or service marks.
Trademark rights prevent others from using an identical or confusingly similar mark for similar products or services. However, it does NOT prevent others from making or selling the same goods or services under a different mark.
Copyrights protect authors of “original works of authorship”. This includes literary, dramatic, musical, artistic, and other intellectual works, published or unpublished. The owner of a copyright is granted, under the 1976 Copyright Act, the exclusive right to reproduce, display, or perform the copyrighted work as well as prepare derivative works.
It’s important to remember that copyrights protect the “form of expression” not the subject matter. For example, if you write the description of a machine and copyright that description, the copyright would prevent others from copying the description. It would NOT prevent them from writing their own description.
Unlike patents and trademarks, which are registered with, and governed by, the USPTO, copyrights are registered and governed by the Copyright Office of the Library of Congress.
MAKING THE RIGHT CHOICE
So, now that you know the what patents, trademarks, and copyrights are, which one is the best choice to protect your product, service, or intellectual property?
The answer depends on what you’re trying to protect.
- A tangible item, i.e. a new machine, a new design for a machine, or a new plant? If so, you may need a Patent.
- A unique name or logo distinguishing your product or service from that of others? If so, you may need a Trademark or Service mark.
- An intellectual property that you have authored? If so, you may need a Copyright.
In most cases, you will need more than on of the above to protect your creation in whole (i.e. a Patent to protect the invention and a Trademark to protect the name under which you sell your creation).
Remember… you put the time, effort, and cost, into inventing, designing, or authoring your product, service, or intellectual property. Don’t risk it all by failing to protect it!
Need help? Give us a call. We can answer your questions, assist you with registration of your trademark or copyright, and help you make the right decisions throughout the process. Call 661-481-3091 today!
Roger Doumanian, Attorney at Law, APC, does not provide patent law services. If you need assistance with your patent registration, please contact an attorney or law firm that offers patent law services.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls.
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