LL&D Law
Trademarks, Copyrights and Patents! Oh my!

by R. Scott Thompson
6/22/2010 9:35:00 AM


     Trademarks, copyrights and patents are three different types of intellectual property. However, each protects something very different. It is important to understand what you have that might need protection and what laws are available to protect it.
     The United States Patent and Trademark Office (“USPTO”) registers trademarks. Trademarks protect things that identify the goods and services of a business. Business names, logos and catch-phrases are common examples of things that might be trademarked.
     The USPTO also has the responsibility for registration of patents. Patents come in three varieties. Utility patents apply when someone invents or discovers a new and useful process or machine, or article of manufacture or when someone invents or discovers any new and useful improvement to one of those items. A design patent may be granted when someone invents a new, original, and ornamental design for an article of manufacture. The difference between the two is that utility patents protect how something works and design patents protect how it looks. Finally, plant patents may be granted to anyone who invents or discovers a new variety of plant.
     Copyrights protect original works of authorship fixed in a tangible medium of expression. Copyright covers things like books, paintings, sculptures, sound recordings and computer software. Copyrights vest in the author at the moment of creation. As soon as you finish your painting, your book or your sculpture, it is copyrighted. You can register your copyright with the Library of Congress. Registration gives you a legal presumption of ownership and allows you to sue for infringement.
     To see how all of these intellectual property concepts can work, let’s put it all together by considering a hot new cellphone called the “aPhone” being released this summer by a trendy software company called Peach. Peach could seek to trademark “Peach” and “aPhone.” Peach could then seek a utility patent on the hardware that makes the aPhone work. Peach could also seek a design patent on look and feel of the aPhone. Having invented a new variety of peach for its marketing campaign, Peach could seek a plant patent. Finally, Peach could copyright the code for the software running on the aPhone, as well as the user manual.



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