A copyright is a form of protection given to an author of an original work of authorship that is tangibly expressed in fixed form, including literary, dramatic, musical, pictorial, audiovisual, choreographic, and architectural works. The owner of a copyright, who is originally the author unless otherwise assigned, has the exclusive rights to reproduce, make derivative works, or publicly distribute, perform, or display the work. However, these rights may be limited by the doctrine of fair use, under which a reproduction of a work may be considered fair under a four-factor test for purposes of criticism, comment, news reporting, scholarship, or research.
Copyright is secured automatically when the work is fixed in a copy or phonorecord. A copy is a physical object from which a work can be read or visually perceived, while a phonorecord is a physical object embodying fixations of sounds (excluding motion picture soundtracks), such as cassette tapes and CDs. Registration of the work with the Copyright Office is not required for copyright protection, but it may confer advantages including the ability to sue for infringement, prima facie evidence of validity, and statutory damages and attorney fees.
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of another. A trademark need not be registered; common-law rights are automatically created through a use of the mark in commerce. However, federal trademark registration confers several advantages, including a legal presumption of nationwide ownership and the right to sue for infringement. To be registrable, a trademark must be used or intended to be used in commerce in connection with identified goods or services, it must be inherently distinctive or have acquired secondary meaning, and it cannot cause a likelihood of confusion. Inherent distinctiveness can be shown if the mark is fanciful (i.e., invented with no dictionary meaning), arbitrary (i.e., typically unassociated with the identified good or service), or suggestive (i.e., suggestive of a characteristic of the good or service).
Secondary meaning applies to a descriptive mark (i.e., descriptive of something about the good or service) that has, through long use, acquired an alternate meaning as a source identifier; however, a mark that is generic (i.e., a common, everyday name for a good or service) is not distinctive. Likelihood of confusion exists when the mark seeking to be registered is similar to another mark for a related good or service; confusion may be found where the marks look alike, sound alike, have similar meanings, or create similar commercial impressions.
A patent is the grant of a property right for an invention, in exchange for public disclosure of the invention, which gives the inventor the right for a limited time to exclude others from making, using, offering for sale, selling, or importing the invention in the United States.
There are three types of patents: utility patents, design patents, and plant patents. A utility patent, the most common type, may be granted to anyone who invents or discovers a new and useful process, machine, article of manufacture, or composition of matter. A design patent may be granted to anyone who invents a new, original and ornamental design for an article of manufacture. A plant patent may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Regardless of the type of patent, the subject matter sought to be patented must be useful, new, and non-obvious. An invention is useful if it has a useful purpose and will operate to perform its intended purpose. An invention is new if it was not already patented, described in a printed publication, publicly used, sold, or otherwise made available to the public. Finally, an invention is non-obvious if the differences between the invention and the prior art (i.e., what has already been used or described before) would not have been obvious to a person of ordinary skill in the area of technology related to the invention.
Although this primer only scratches the surface of intellectual property law, a good rule of thumb is to keep the following in mind: look to patent law if the client wants to protect a new idea or discovery, look to copyright law if the client wants to protect an original expression of a work, and look to trademark law if the client wants to protect a brand.