What is Intellectual Property?
Thomas V. DelRosario
Sep, 29 2009 | 12:33 PM
When I tell people that I am an Intellectual Property attorney, one of the first questions I get is usually, "what is intellectual property?" I explain that I deal with patents, trademarks, and copyrights. The next question is typically, "what is the difference between patents, trademarks, and copyrights?"
This is an important question. Although patents, trademarks, and copyrights have been lumped together as "Intellectual Property" for many years, patents, trademarks, and copyrights are very different in what is protected, how the protection is obtained, and how long the protection lasts.
What is protected?
Patents protect the way an idea is used. In and of itself, an idea may or may not be patentable. But the way in which the idea can be used to create a product or service is protected.
Trademarks protect a brand by indicating the source of goods or services. This includes the name of a company (e.g., "Nike"), the name of a product or service (e.g., "Air Jordan), the slogan used to represent a brand (e.g., "Just do it"), or a logo (e.g., the Nike Swoosh).
Copyrights protect the creative expression of an idea. Copyrights generally protect items such as writings (books, articles, blog entries, emails, etc.), images (photos, paintings, etc.), films, and audio recordings. This includes both fiction and non-fiction.
How does one obtain these protections?
Patents are the most difficult to obtain. A patent application must be filed with the Patent and Trademark Office ("PTO") (for U.S. patents, the process can be slightly different for foreign patents), the patent application is examined by the PTO, and the PTO may reject the patent application if it believes the subject matter has already been invented or if there are other flaws in the application. Then, the applicant (or his attorney) aims to convince the PTO that they are mistaken. In the alternative, the applicant may amend the application. There may be several iterations of this process before the PTO finally agrees to allow the patent application. This process may take several years and requires more money in attorney fees than the other forms described below.
Trademarks are easier to obtain. If you want Federal protection of your mark, an application to the PTO must filed. It is easier to obtain than a patent application because you merely have to file the mark you want to protect and a description of the goods and services you will provide using the mark. The PTO will examine the mark and determine if it is confusingly similar to an existing mark. If not, you obtain the mark fairly quickly. If it is confusingly similar, a requirement may be necessary to make amendments in order to obtain a trademark.
Copyrights are the less cumbersome to obtain. In fact, anything copyrightable that you create is automatically protected with a copyright. However, you cannot protect your copyright (e.g., file a lawsuit), unless you file for a copyright registration. With that said, Copyright registrations are automatically granted by the Copyright office--all that is required is filling out a form and then submitting the work you wish to register.
How long does the protection last?
Patents last the shortest amount of time. The protection lasts 20 years from the filing date of the patent. In addition, you must file Maintenance fees with the PTO approximately every 4 years in order to maintain the protection.
A trademark can last as long as you use the trademark. The only requirement is that you periodically send proof to the PTO that you are still using the mark. This is why brands that have been around for a long time can still use the same name (e.g., Coca-Cola has been around since 1886).
A copyright also lasts quite a long time. A copyright created by an individual lasts until 70 years after the death of the author. A work protected and created by a corporate author lasts for 95 years from the date of publication (or 120 years from creation, whichever ends earlier).
In future blog entries, I will describe in more detail how to obtain patent, trademark, and copyright protection.
