FAQ

How do copyrights, patents, and trademarks differ?

Copyrights, patents, and trademarks are legal protections for different types of intellectual property. While each has its own rules and applications, they sometimes overlap so that more than one form of intellectual property protection could apply to the same article or service, although in practice usually only one type of protection is granted.

What's the difference between a business name and a trademark or service mark?

The name that a business uses to identify itself is called a trade name. This is the name the business uses on its stock certificates, bank accounts, invoices and letterhead. When used to identify a business in this way - as an entity for non-marketing purposes - the business name is given some protection under state and local corporate and fictitious business name registration laws, but it is not considered a trademark or entitled to protection under trademark laws.

What is trade dress?

In addition to a label, logo or other identifying symbol, a product may come to be known by its distinctive packaging - for example, Kodak film or the Galliano liquor bottle - and a service by its distinctive decor or shape, such as the decor of Banana Republic clothing stores. Collectively, these types of identifying features are commonly termed trade dress. Because trade dress often serves the same function as a trademark or service mark - the identification of goods and services in the marketplace - trade dress can be protected under the federal trademark laws and in some cases registered as a trademark or service mark with the Patent and Trademark Office.

What is a collective mark?

A collective mark is a symbol, label, word, phrase or other mark used by members of a group or organization to identify goods, members, products or services they render. Collective marks are often used to show membership in a union, association or other organization.

What are the advantages of registering a copyright?

Artists automatically receive federal copyright protection for their works as soon as the works are created. Registration of a copyright is not essential for protection, but there are some advantages to registration; some of which are listed below.

What is "work made for hire"?

A copyright is owned by the artist who created the work, unless the artist sells the copyright or the work was "made for hire." Generally speaking, work made for hire is something that was created by an employee while on the job, or by an independent contractor who was hired to create the specified work. The copyright on work made for hire belongs to the employer or the party who commissioned the work.

When is copying something allowed under copyright law?

Copy machines in libraries and copy centers often have signs posted above them warning that a person making copies from a published work may be violating copyright laws. Not all copying violates the exclusive rights of a copyright holder, though. Of course, if a poet gives a radio commentator permission to quote his poem, the copyright is not violated. The "fair use" doctrine has been developed by the courts to determine when copying is allowed without the prior permission of an author.

Who owns the patent on an invention created by a person as part of his or her job?

The actual inventor is the only one who can file for a patent, even if the individual developed the invention in the course of his or her employment using the employer's resources. However, it is a regular practice for an employee of a corporation or university to sign a contract stating he or she will assign any patents received to the employer. Often a potential employee must sign such a contract as a condition of hire. Sometimes an employer may agree to share royalties with the inventor, or may give a bonus to the inventor. If there is no agreement of this sort, the employer may be given "shop rights," the right to use the invention for its internal purposes. No matter what sort of arrangement exists between the inventor and the employer, though, the inventor's name remains on the patent.

Is it necessary to hire a lawyer to submit a patent application?

There is no requirement that an inventor hire a lawyer to help with a patent application, but it is advisable. Patent law is a complex mix of intellectual property law and technical information, and for this reason patent lawyers are trained in the patent process and in one or more technical or scientific fields. Before an inventor applies for a patent, a lawyer can make a preliminary patent search to determine if someone else already has patented the invention. The lawyer also can advise the inventor on whether the invention meets the legal requirements for patentability.

What is a Provisional Patent Application?

A provisional patent application (PPA) is an easier and less expensive way for an inventor to file a first patent for an invention than a traditional patent filing. To file a PPA an inventor must submit a detailed description of the invention, informal drawings if necessary to understand how to make and use the invention, a cover sheet, and a fee. A PPA does not require a formal patent claim, oath, declaration, or information disclosure. When the USPTO receives a PPA, it does not examine it, and keeps it confidential. Within one year of filing a PPA, an inventor must file a formal patent application, which may not include any new technical information about the invention. If a formal patent application is not filed with this time, the PPA will be abandoned. A formal application can be filed later, but the inventor will lose the advantage of the earlier filing date.

When can the decor of a restaurant be protected under trade dress law?

If the decor of a restaurant is distinctive and if a competitor's use of similar decor could confuse consumers, the decor of the first restaurant may be entitled to trade dress protection.

How can a business prevent an employee from stealing trade secrets when the employee leaves the company?

It is impossible to prevent all trade secret theft by employees, but an employer has some tools at its disposal, including:

requiring employees, when they are hired the company, to sign non-competition agreements which prohibits the employees from using confidential business information or product innovations to compete with the employer in a new job;
conducting exit interviews with departing employees to remind them of their duty to keep trade secrets confidential;
educating employees about the importance of confidentiality of trade secrets;
limiting access to confidential information to those who need to know the information; and
using computer passwords to access confidential files.

What kinds of marks cannot be registered as federal trademarks?

Not all words, names, or symbols can be used as trademarks. Categories of marks that generally will not be registered as trademarks include:

Generic marks;
Surnames, unless they become well known as trademarks through advertising or long use, such as McDonald's;
Trade names, unless they are used in the marketplace and have become distinctive;
Marks containing immoral, deceptive, or scandalous matter;
Marks that disparage persons, institutions, beliefs, or national symbols;
Marks consisting of the flag of the United States, a state, or a foreign nation;
Primarily geographically descriptive marks;
Marks using the name, signature, or portrait of a living individual without that person's consent;
Marks using the name, signature, or portrait of a deceased U.S. President, during the life of his widow, without written consent of the widow;
Marks so similar to those already registered that they may cause confusion, mistake, or deception; and
Marks that merely describe the product or service.

Should I use an invention marketing firm?

If you are considering going to an invention marketing company, you need to carefully consider what they are offering to do for you. These are the companies which advertise on television and radio, and in print, promising that they "help" inventors. While there may be some exceptions, the invention marketing business has a questionable reputation. Inventors tell us that what they get is much less than what they thought they would get for their money.

Intellectual Property Law - Learn More

Intellectual property describes a wide variety of property created by musicians, authors, artists, creative writers, and inventors. Intellectual property law protects this property through copyright, patent, trade dress, and trademark, as well as other laws. These areas of law are designed to encourage the development of art, science, and information by granting property rights to creative and inventive people who create and develop new concepts. Intellectual property rights reserve to artists and inventors the rights in their creations and inventions as inspired by Article 1 of the US Constitution.