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copyrightallrightsreservedCopyright law protects original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated.

Broken down, an author must have the following three requirements for a valid copyright:

  1. Original (independently created by the author);
  2. Be in a physical form (no matter how briefly in time); and
  3. Be the result of the author’s creative effort.

Copyrights do not protect facts or ideas.

A copyright attaches to the work immediately when the work has been fixed in a tangible form.

A valid copyright provides exclusive rights to the author to:

  • Make copies of the work;
  • Distribute the work (selling or donating);
  • Adapt the work (derivative works); and
  • Perform and display the work.

Giving the author attribution is not sufficient.  The author gets to decide if, when, and how you can use the work.

Now what?  You want to use a video, song, poem, or other artistic work that you found on the internet; can you legally use it?  Without more information, you cannot determine if the work is copyright protected.  The best idea is to assume the work is protected, find the author, and get written permission.  You might also be able to use a portion of the work under the “Fair Use” doctrine.  I will write more about fair use in a future blog.



Well-Known Trademarks

Trademarks can be a word, phrase, design, symbol, or a combination of them.  The purpose of a trademark is to accurately identify the origin of goods or services.

Shapes can only be trademarked if they are distinctive.Apple computer logo

Process of obtaining a Trademark:

Adopt your mark by using it (or file an Intent to Use application) and file an application for a registered trademark. Examiners at the United States Patent and Trademark Office (USPTO) review the application.  Others can challenge the validity of the mark within the first five years of use.  After that, it is irrebutable.  Renewal is required, but otherwise, your trademark lasts forever.

Hierarchy of strength of mark:

  1. Coined mark (made up), such as Xerox or Exxoncoined marks
  2. Arbitrary mark (does not convey any qualities of the product), such as Peter Pan Peanut Butter or Dial Soaparbitrary mark
  3. Suggestive mark (the quality of the product is pitched, but you must use your imagination), such as Imperial Margarineimperial
  4. Descriptive mark, such as Quality Innquality inn
  5. Generic Mark (common descriptive name for the product itself), such as Super Glue, Play-Doh, or Kitty Littergeneric mark

Common exclusions from registration:

  1. Descriptive name
  2. Geographic name
  3. Surname

If your mark falls within the first three categories (coined mark, arbitrary mark, or suggestive mark), the trademark is probably protectable immediately becuas they are inherently distinctive and will not cause confusion.  Descriptive and generic marks can be trademarked only after the mark is so well known that the applicant can show that the mark has acquired secondary meaning.

You do not have to register your mark with the USPTO in order to enforce it (there are state laws protecting trademarks); however, it is very helpful.

You can use the TM sign (encouraged), but you can only use R with a circle after it is registered.trademark symbols

You must show that the public is likely to be confused by another’s mark.  Does anyone think that the source of this shirt is Disney?quilters press to the dark side



Patents cover new, non-obvious, and useful inventions, such as machines, devices, chemical compositions, and manufacturing processes. The right to exclude is given to the inventor who first files with the United States Patent and Trademark Office (USPTO). Patents are the most defined and formal type of intellectual property. Unlike trademarks and copyrights, which are protected even if the owner files nothing with the USPTO, the protections of a patent only arise after the government has examined the invention and granted the patent.

There are three types of patents: Utility, Design, and Plant.

Utility patents comprise the majority of patents. Examples of utility patents are rotary cutters and safety mechanisms on rotary cutters, features on sewing machines, and processes for making fabrics. Utility patents also cover procedures and methods, such as a new way of cutting fashion fabric.

Design patents cover new and ornamental designs of useful articles, such as furniture, containers, toys, and shoes. The design has to have practical utility. Design of useful articles are not covered by copyright law (insert picture of dress).

Plant patents cover new and distinct plant varieties.

To obtain a patent, an inventor must file an application with the USPTO, in a timely fashion. The patent application has very specific requirements. Then the application gets assigned to an examiner. The examiner may spend years going back and forth with the inventor to determine if the idea/invention meets all of the requirements.

If granted, the patent will include all kinds of helpful technical information. (show Watanabe patent). For example, this is a patent that I pulled for a light on a rotary cutter.

A patent gives the patentee the right TO EXCLUDE others from making, using, or selling the claimed invention in the United States for 17 years from the issue date (with some exceptions).

Simple example: A patent exists for a pencil. You invent the concept of attaching an eraser to a pencil, and you receive a patent for that invention. You do not have the authority to make, use, or sell pencils with erasers attached; you have to get a license for the pencil patent.

You don’t have to make or sell the invention to exclude others.

If a product is patented, it helps (in a variety of ways) to mark the product with the patent number, or “patent pending” if an application has been filed but has not been accepted or rejected. – (Show photo of acceptable marking). As an aside, I interviewed someone who was putting “patent pending” on a purse when no application had ever been filed – this is an illegal deceptive trade practice.

A patentee also has the right to file a lawsuit for infringement against anyone who, without authority, makes, uses, or sells the patented invention. This is true even if another person independently invented the same idea. The intent of the infringer is irrelevant in determining liability. If the infringer does so intentionally, however, the patentee is entitled to additional damages as a punishment for infringement.

Patents are the property of the inventor(s), which means they can be sold or assigned.

As a practical matter, obtaining a patent requires a specialized lawyer, and it is expensive – most cost over $10K. Patents are most useful for inventions that will be commercially important. For example, Bernina may be the first to invent an automatic threader and want to exclude the other sewing machine manufacturers from having that feature.

Summary:

Patents primarily cover machines, devices, and processes. They are expensive and time consuming to obtain and provide protection only if allowed by the government.



“Intellectual Property” or “IP” refers to creations of the mind.  Many governments, including the United States in the US Constitution, have made a policy decision to give the inventor/author/creator a limited monopoly on certain types of intellectual property.  This monopoly and its limitations attempt to serve two, competing purposes.

  1. Encourage and reward creators.  As a society, we want to encourage and reward new thoughts and inventions.  Morally, we’d like creators to financially benefit from their hard work and creativity.  Allowing a monopoly incentivizes creators to share their works with everyone while protecting their hard work from copy-cats who have not expended the same time and resources in coming up with these advances.
  2. Freely sharing ideas.  On the other hand, we limit the time period for protection so that everyone to share in knowledge in the hope that all of humanity advances.

The United State federal government supports and protects three primary types of IP.

  • Patents
  • Trademarks
  • Copyrights

Each of these three categories covers very different types of intellectual property.  This blog will have a series of entries on each of these topics, starting with an introduction to patents.  If you have a question, please submit it and I will be happy to answer the question.