Copyright, trademarks, patents, and licences are all types of intellectual property (IP) rights protection recognised under US law. The differences between them may be complex, and the same product or service may entail more than one of these intellectual property rights. How do you determine the difference when determining how to safeguard your company’s assets? This is how.
Table of Contents
Copyrights
Copyright safeguards “writers'” rights in their original creative works. Copyrightable works include creative products such as books, paintings, films, and music, as well as commercial works such as software code, website designs, architectural blueprints, marketing reports, and product manuals.
The creator of a copyrighted work has the only authority to:
The creative material may be reproduced (printed or copied), published, performed, displayed, filmed, and/or recorded.
Produce derivative works based on the original material (for example, updates, revisions, summaries, translations, and adaptations).
When a work is fixed in physical form, either directly or via the use of a machine, such as a computer or movie projector, copyright protection develops immediately. Copyrights have a period equal to the author’s life plus 70 years. If a firm owns the copyright, it has a term of 95 years from the day the work was first made public.
Works that are copyrighted may be registered with the United States Copyright Office. Registration is not required, however it is strongly advised. The author obtains legal advantages through registration, including the capacity to enforce the copyright against infringers in court. Copyrighted works (registered and unregistered) may show the sign to indicate that the creator believes the work is copyrighted.
Trademarks
A trademark is a symbol, term, slogan, design, colour, or logo that identifies and differentiates the source of a product or service from those created or offered by others. Trademarks may signify the following:
The actual goods or service (ex. iPhone)
A component or characteristic of the product or service (ex. FaceTime)
The product’s or service’s maker or supplier (ex. Apple).
A trademark that identifies a service rather than a physical object is known as a “service mark.”
The owner of a trademark has the right to prohibit infringers from unfairly competing with the owner by using “confusingly similar” marks. Trademark rights may emerge in two ways in the United States:
Use of the trademark in the marketplace in connection with a product or service (“common law” or unregistered trademarks) automatically confers ownership.
By filing a trademark application with the United States Patent and Trademark Office (PTO) (“registered” trademarks).
Although it is not required by law, registering a trademark with the PTO provides the trademark owner with several advantages. A U.S. trademark registration, for example, grants the owner national rights to use the mark in connection with the products and services listed in the registration. Common law trademarks only generate rights in the particular geographic areas where the owner uses them.
Common law trademarks may be used in conjunction with the SM or TM markings. The ® sign may be used to identify registered trademarks. Both sorts of trademarks are legal as long as your company uses them. However, registered trademarks must be renewed with the PTO on a regular basis.
Patents
Patents safeguard innovators’ rights. A patent is a 20-year exclusive property right issued by the Patent and Trademark Office for an innovation.
A patent gives you the right to prevent others from creating, using, or selling your innovation. Once your patent is granted, you must enforce it against unauthorised third parties that violate your rights. If you fail to do so, a court may deem your patent “abandoned” and unenforceable.
The vast majority of patents are utility patents, which cover “any new and useful technique, machine, object of manufacture, or composition of matter, or any new and useful improvement thereof.” To acquire a utility patent, you must demonstrate to the PTO that your invention is beneficial, unique, and non-obvious via claims in your patent application. Other sorts of patents that firms often seek include:
Design patents, which address “new, original, and ornamental design incorporated in or applied to an object of production” that does not impact the function of the article;
Business method patents, which protect novel business techniques such as those utilised in banking, tax compliance, and e-commerce; and
Plant patents, which protect novel and different asexually reproduced plants that have been created or found.
Licenses
Licenses are agreements that transfer intellectual property rights from the owner of the rights (the Licensor) to a third party that wishes to use them (the Licensee). They may be exclusive (only one Licensee is given rights) or non-exclusive (rights are provided to several Licensees) (rights are granted to multiple Licensees). A Licensee normally pays a royalty to the Licensor in return for the right to utilise the IP rights. Royalties are often calculated as a proportion of the income generated by the Licensee from the sale of items incorporating the licenced IP rights.
Licenses may be very significant assets for your company. Royalty payments from licences may produce a major cash stream for the Licensor. Licenses may allow the Licensee to offer better items in the marketplace.
Licenses are typically written for a certain period of time (say, three years) and must be renewed by the parties to prolong the duration. Renewal may be contingent on the payment of minimum royalties.
Is it possible for a product or service to have many types of intellectual property?
Yes. For example, a patented mobile phone may employ technology (data encryption) and have functionality (a camera). The phone might be sold under a registered trademarked brand name. The appearance and feel of the phone’s home screen design may be protected by copyright. If the phone’s maker did not originate all of the IP, it may have licenced part of it from others.
Images are another example of a situation in which various types of rights protection may be required. Picture copyright is frequent, however trademark protection may be necessary if the image is used to identify the source of a certain goods or service. Similarly, clothes may raise a number of difficulties for the protection of human rights. Copyright and/or trademark protection may be required for artwork that is printed, embroidered, or silk-screened on apparel (hats, t-shirts, etc.).
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