April 16, 2014
By: Jessica Mendelson
Welcome to the IP File, Glaser Weil’s intellectual property law blog. Our mission: to scour the universe for compelling stories in intellectual property law.
As an introduction to our blog, we would like to start by giving you a brief overview into intellectual property, or IP, as it is commonly known. It’s a hot buzz word these days, but what types of things are actually considered intellectual property? Intellectual property generally encompasses ideas, inventions and other non-tangible forms of property. In the United States, there are four main types of intellectual property protection available: patents, copyrights, trademarks and trade secrets.
Imagine that you have just invented a novel type of global positioning system, and now you would like to protect your invention. What type of intellectual property protection should you get?
In all likelihood, the best type of protection for you to get would be a patent. Patents are a type of intellectual property protection issued by the federal government. For an invention to be patentable, the subject of the patent must be new, useful and not obvious. Patents grant their owners the right to exclude others from making use of the invention protected by the patent. In exchange for 20 years of exclusivity, the patent holder must fully disclose the invention to the public in a manner complete enough to enable others to make use of the invention. Being able to patent an invention proves advantageous to the inventor, as it allows him or her to obtain an exclusive advantage in the market or to license the rights to that advantage. For the government, the disclosure of such information proves advantageous because it encourages commercialization and innovation.
Now imagine that you have written a novel about intergalactic space travel, and you would like to protect your work from infringement. Your novel is protectable under the U.S. Copyright Act. A copyright grants an author or creator exclusive rights in their creations so as to “promote the progress of science and useful arts” by providing an economic incentive for such works. It provides various rights, including the right to reproduce the work or make derivative works, distribute copyrighted works, and to perform or display the work. Generally, registration of a copyright provides exclusivity for the life of the author plus an additional 50 years, so long as the work is created on the author’s behalf.
Now let us suppose that you are the owner of McDonald’s. Each of your restaurants has a sign with golden arches that signifies a certain level of quality to your customers. However, what if a competitor were to use the golden arches to advertise their own fast-food restaurant? Are the golden arches protected property?
Yes, in fact, the golden arches are protected under trademark law. Trademarks and service marks are words, designs, phrases or symbols that are used in association with goods or services designed to identify a source or standard of quality of the products or services purchased. The public gradually begins to associate the goods or services with a particular mark and with a certain level of quality, creating a goodwill that often becomes the cornerstone of a person’s business. A trademark can either be created by filing a mark with the U.S. Patent and Trademark Office based on an intent to make use of the mark in association with a product or service, or by beginning to use the mark commercially in association with a product or service.
Now suppose you have created a secret recipe for fried chicken. You tell no one the ingredients to the recipe, and you become widely known for your famous fried chicken. Is your recipe protected intellectual property, even though you have not disclosed it?
Yes, your recipe is a protected trade secret. Trade secrets differ from other types of intellectual property in that its value stems from maintaining the secrecy of the information. The subject matter of the trade secret is information which is not generally known or reasonably ascertainable, confers an economic benefit on its holder, and is the subject of reasonable efforts to maintain its secrecy.
Note that in many cases, a single product and its packaging can be protected by multiple types of intellectual property. For example, in the case of a computer, the parts of the computer itself can be patented, the instruction manual can be protected by copyright, and the computer brand itself can be trademarked.
We hope you have enjoyed our brief introduction to intellectual property. Future blog posts will focus on new and interesting events and cases in the intellectual property world, so please check back frequently!