By Joel Myers, a founding member of Myers & Kaplan Intellectual Property Law, LLC, 12/01/07

While the law recognizes several kinds of intellectual property, the purposes for each are very different; thus, the legal protections available for each are different. The rights of patent and copyright are protected by the United States Constitution. In fact, the rights of patent and copyright are vested solely in federal law; that is, no state may grant copyrights or patents. In contrast, trademark rights arose at common law, were later codified by legislative act, and have been modified from time to time by court interpretation. Unlike patent and copyright law, modern federal trademark law gives each state the right to register trademarks for use within its borders; however, any rights granted by an individual state are always subordinate to those rights granted by federal law.

A. Patents - Patent rights generally may be secured by “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Depending upon the type of patent right held, the term of protection afforded patents ranges from fourteen years from the patent issue date to twenty years from the patent filing date. Generally, the right granted by issuance of a patent is the right to exclude others from making, using, or selling the patented “art.” Patent rights may not legally be claimed until the rigorous patent application process has been successfully completed and the United States Patent and Trademark Office has issued Letters Patent to the inventor.

B. Copyrights - Copyrights generally subsist “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” A copyright generally endures for the life of the author plus an extended term of years. Copyright ownership gives the owner the exclusive right, subject to certain statutory limitations, to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the work, to perform the work, and to publicly display the work. While there is no statutory mandate that the author comply with the extensive federal copyright registration procedures, the author is protected by the Copyright Act that provides certain extremely favorable legal rights and remedies that may not be exercised without prompt registration.

C. Trademarks - Trademarks arose at common law out of the concern for protecting the goodwill and reputation of a business in the eyes of its customers. Early business owners and guilds recognized that by placing their business name or guild symbol upon their products, the consuming public came to associate the quality and uniqueness of the product with the merchant’s symbol or name.

Trademark rights attach, on a limited basis, at common law through mere use of the mark in trade; that is, there is no requirement that the mark be registered. Like copyrights, however, the law encourages prompt registration of the mark in order to obtain maximum legal protection.

Joel Myers, a founding member of Myers & Kaplan Intellectual Property Law, LLC, can help you determine your need for a patent, copyright or trademark registration. There is no charge for the first consultation. He can be reached at 770-541-7444.