Intellectual property law is a field that seems to cause a great deal of confusion for many people working online. With this in mind, let’s take a look at copyright, trademark and patent law in relation to what subjects they cover and where they differ.
Copyright law is designed to protect original artistic works expressed in fixed form. Examples of copyrighted works include this article, the text in a book, the code for a software program, certain elements of a website page, photographs and, of course, music. A copyright lasts for the life of the author plus 70 years in most cases although this period may be shortened if the work is anonymous.
Trademark law is designed to protect an identifier of a product, brand or company active in the field of commerce. The basic idea is to provide consumers with confidence that if they see a particular identifier, they can associate a certain level of quality with it. An example of this would be the Apple brand. If I mention Apple to you in the context of electronics, you automatically understand I am referring to the company and not a fruit.
A trademark initially lasts 5 years, but you can extend it if you file a notice of use. It will then last another four years, but this may then be extended another 10 years by filing a “Declaration of Use and Application for Renewal”. As long as this declaration is filed every 10 years, the trademark will continue to be valid.
Patent law is designed to protect the owners of inventions. If an owner is found to have created a new and unique process, they are given the patent to it and control the rights to that process for 20 years. An example of a patentable product might be Google glasses, assuming nobody else has already patented the process.
One area where each of these intellectual property rights overlaps is in the area of infringement. As the owner of any of the above intellectual property rights, you can pursue legal action against any group who launches a product you feel infringes on yours.
Let’s consider a website as an example. If you copy this article and repost it on your website, then I can sue you for copyright infringement. This is my original artistic work, so you would be infringing on my copyright. The same would be true if we were talking about a trademark or patent.
Looking at an example can help reveal how copyrights, trademarks and patents come into play in the real world. In our example, we will look at a hypothetical innovative new website.
Let’s assume I start a website. I have a revolutionary idea to build my site with a new type of software code called Raging Tiger that is organic. In fact, the site will be called Raging Tiger and have an epic Tiger as the logo. The site will also contain a vast collection of articles, audio recordings and videos explaining the new program.
What intellectual property rights apply in this situation? All of them.
Let’s start with copyright law. In our example, the videos, audio files and text on the site are clearly going to be covered by copyright law. The code behind the visual appearance of the site may be as well depending on whether it is fixed or not.
We also have a trademark issue to consider. The logo of the Tiger is clearly an asset that can be trademarked. It identifies the brand and product. We will need to check, however, to make sure our logo doesn’t infringe on another tiger logo already in use.
We aren’t done with the trademark issue. If the Raging Tiger name appears on the website page in a prominent manner, we can also trademark it. If the name only appears in our domain, we cannot.
Patent law covers any new processes. Do we have one? Yes, we have a completely new language and process for building websites. Software is a tricky issue with the patent office. The actual code in the software is not patentable, but the new methodology we have come up with to build a website is arguably something we can protect.
Does the typical website run into copyright, trademark and patent issues? No. The vast majority of websites will need to seek trademark and copyright protection, but few websites have a truly new methodology that would trigger a patent filing.
Intellectual property is very valuable. Make absolutely sure you understand what you can protect and then put that protection in place. Contact me today to take steps to protect yours before a competitor gets their hands on it.
Richard A. Chapo, Esq.
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