Patents, Trademarks, Copyrights--What's the Difference?

Patents

A patent protects inventions through federal law. Inventions are your creative ideas for new products (articles of manufacture), machines, processes, methods, compositions of matter, ornamentation on products, or new plants. An improvement on an existing product may also be patented.

Utility patents protect the majority of these. To be patentable, your invention must be useful, novel and non-obvious. Design patents protect the ornamentation on devices. Plant patents protect new plant varieties.

Utility patents give you a monopoly (no one else can make, use, sell, offer for sale, or import your invention) for twenty years from the date of filing.

Design patents give you a monopoly for fourteen years from the date of issue, and prevent others from making the patented device with your ornamentation on them. (By way of example, a table is a useful device. If you could obtain a utility patent on a table with a flat surface and four legs, you could stop anyone from making such a table. If your table had an unusual ornamental shape or surface pattern, you would be able to prevent others from making tables with that shape or surface pattern.)

Plant patents last for twenty years from the filing date of the patent application.

Infringement of your patent allows you to potentially obtain treble damages plus attorney fees.

Trademarks

Trademarks (or service marks for services) protect names, logos, slogans, and the like through both federal and state laws. Your name, logo or slogan identifies you to your prospective customers as the source of the goods and services that you are offering, and thus constitutes a trademark.

There are both federal trademarks and state trademarks. There are also common law trademarks that are not registered at either the federal or state level. Federal trademark applications can be filed even before you are using the trademark name, logo or slogan to reserve your trademark.

Other than common law trademarks, federal and state trademarks must periodically be renewed. Federal trademarks must be renewed every ten years. If you no longer use the trademark, you lose your rights. Otherwise, so long as you continuously use and/or renew the mark, you will continue to have rights forever.

Infringement of your trademark allows you to potentially obtain treble damages and attorney fees.

Copyrights

Copyright protects your creative artistic expression, but only once it is set into a tangible form. For instance, you create and sing a song. There is no copyright unless the song is recorded or written, because there is no tangible representation of your artistic expression. However, once you write, record, photograph, draw, or otherwise create a tangible record of your artistic expression, you automatically have copyright. That is, you are the only one who has the right to make or sell copies.

Ideas cannot be copyrighted. They may only be patented. Examples of copyrightable materials are written words, such as in books, magazines, poems, songs; written music; performances of music; paintings and drawings; photographs, videos, architectural plans, website content and layouts, and computer software.

Copyright lasts for 70 years plus the life of the creator (or last to die for multiple authors) for new works under current law. If the work is made for hire, then the term is the shorter of 95 years from publication or 120 years from creation.

Federal laws provide you with the right to enforce your copyright, but only once it is registered. There is the possibility of obtaining statutory damages of up to $150,000.00, plus the possibility of being awarded attorney fees. Thus, it is very important to register your copyright as soon as practicable.

Other

Finally, trade secret protection is another means of providing protection to ideas. However, the key word here is secret. Let someone who has no need to know in on the secret and it is no longer protected. Trade secrets are most suitable to keep secret formulas or processes protected.

For more information, please visit http://www.trwiplaw.com.

C2006, Williamson Intellectual Property Law, LLC; all rights reserved, world-wide.
This article, and/or the reading thereof, shall not be construed as offering, containing or receiving of legal advice, and shall not create any attorney-client relationship or privilege. If you are considering protecting your intellectual property, you should consult with an attorney of your choice.

Thomas R. (Terry) Williamson III, Ph.D., Registered Patent Attorney
Williamson Intellectual Property Law, LLC
1870 The Exchange, Suite 100
Atlanta, GA 30339
770-777-0977
http://www.trwiplaw.com

What You Need to Know About Trademarks

Once you have trademarked your identity, your company has the right to prevent others from using a trademark this is similar or confusing. That means that no one can use a trademark that can be confused with yours. This protects your company identity, reputation, and market share. The term of a trademark is 20 years.

Trademark protection can be obtained two ways. First, trademark protection is available for inexpensive registration in most states. Contact your state?s secretary of state to find out the procedure for registering your trademark in the state where your business operates. Secondly, trademark protection can be obtained from the federal government for approximately $335. This can be done online at the website for the United States Patent and Trademark Office website www.uspto.gov. The forms can all be completed and submitted online.

Only certain words or symbols can be protected as trademarks. The word or symbol must identify your company as the creator of the product or service with which the trademark is used. You cannot trademark a word that is commonly used to describe your product or service. For example, you cann trademark the word ?consultant? if you are a consultant. You can, however, trademark the name of your consulting company.

Colors, sounds, scents, and packaging can be protected as trademarks. To be trademarked, those items must be shown to be associated with the particular product or service that your company sells. It must identify and distinguish your product or service. The design and appearance of products and their packaging or labeling can be trademarked.

Before you can obtain a trademark, you must search the website to determine that no other company has trademarked the same or similar item. The first company to obtain trademark rights owns the trademark, and the can sue another other company that uses their trademarked item. Before obtaining a trademark, you may also want to find out if you can use that item in your domain name so that you will have the same identifier online.

While your trademark application is pending, you should use TM on the item. Once you have trademark protection, you should use the ?circled R? symbol to put the public on notice that you own the item. Trademark protection may also be available internationally, but you will have to trademark in each individual country where your product will be sold. Before you apply for a trademark in another country, be sure the country will enforce your exclusive right to use the trademarked item. If you register your trademark on the internet as a domain name, you will have trademark protection.

Trademark protection is important and it is valuable. If another company uses your company?s trademark, it can divert business away from your company. It may also damage your company?s reputation if the other company has shabby operating procedures. The estimated value of counterfeit goods in the U.S. is approximately $250 billion, so be proactive in protecting your company?s trademark.

Jo Ann Joy is the CEO and owner of Indigo Business Solutions, a legal and business consulting firm. Indigo Business Solutions is a ?one stop shop? for small businesses, because we offer both legal and business services. We can provide all the professional services that a business requires, and they won't have to be "referred out" and pay another professional.

Jo Ann has a law degree, an MBA, and a degree in Economics. She is a strategic business attorney who works closely with clients to greatly improve their chance of success. Her background includes commercial, corporate, contract and real estate law, and she has experience in accounting, financial planning, mortgages, marketing, product development, banking, and business planning and strategies. She ran a successful business for 10 years, and she has written and given presentations on many different legal and business subjects.

If you have questions about legal, business or tax topics, please visit our website http://www.IndigoBusinessSolutions.net Phone: 602-663-7007; Fax: 602-324-7582.

Yahoo to Prohibit Competitive Keyword Bids Containing Trademarks

Yahoo Search Marketing (searchmarketing.yahoo.com) has recently announced its advertisers of a new policy to be implemented as of March 1st 2006, concerning the use of trademarks within their products and services *.

Under the new policy, no reference to a trademark can be made (except for ads placed by the trademark owners themselves, obviously), and consequently no bids can be make for keywords containing such trademarks. Exceptions refer to usage of trademarks in non-competitive ads, such as those made by re-sellers, or in informative (and still non-competitive) ads.

The previous policy allowed references to competitors' trademarks and comparisons as long as they were "objective and informative" - the formulation makes me cringe, as it is clearly troublesome trying to evaluate one's objectivity when speaking of business competitors. As for the "informative" side of it... the probability for someone to actually PAY for an ad to be informative of someone else's product/service, that's as believable just like the existence of Santa Claus.

It is really good to see Yahoo making a big step forward in regulating abuse and misuse of trademarks, even though that probably translates in some revenue loss for them, by having certain advertisers migrate to a "friendlier" place such as Google. According to Google's policies, "[...] advertisers may select trademarked terms as keywords or use them in the content of the ad. As a provider of space for advertisements, Google is not in a position to arbitrate trademark disputes between advertisers and trademark owners. As stated in our Terms and Conditions, advertisers are responsible for the keywords and ad text that they choose to use. Accordingly, Google encourages trademark owners to resolve their disputes directly with the advertiser, particularly because the advertiser may have similar ads on other sites. However, as a courtesy to trademark owners, Google is willing to perform a limited investigation of reasonable complaints."

The question is why would Yahoo change its policies and apparently offer Google an even bigger bite from the SEM cake? It is way too early to say now, and their official explanation is not entirely believable: Yahoo states to have had the users' best interest in mind, by providing them with a better experience when searching terms that contain trademarks. Though this would make a laudable initiative with a good PR potential, experts know the search market is driven by large publishers and advertisers and not by the little surfing guys. Numerous speculations can be made: threats of large legal actions from trademark owners, pressure from certain groups of interests are among the most vehiculated ones. However, a more plausible one is that Yahoo makes preparations for a much larger scale movement destined to influence the market in a manner we cannot anticipate just yet.

Until further industry news, there's one thing to rejoice: from now on, no "better than Botox" ads on Yahoo and their partner sites!

* - the products and services covered by the new policy are: Sponsored Search, Local Advertising, Search Submit, Product Submit, Travel Submit and Directory Submit.

Otilia is a young certified professional with expertise in e-Marketing and e-Business, currently working as independent consultant and e-publisher. She has recently launched MarketingWHO.com, a professional Marketing Directory and blogs at The Marketing Journal.