As an attorney I am frequently asked legal questions about a seemingly endless variety of topics. One of the more frequent questions I am faced with is, “I need to get trademark protection, can you help me with that?” Automatically, my first response is to find out more about what the other person is trying to protect because often times the person does not need trademark protection. They might actually need a patent or a copyright. This is part one of a series of articles about the various statutory protections for intangible property.
What is a trademark or a service mark?
A trademark is a unique word or design that is used to identify the source of goods produced by a person or entity. Coca Cola™ is an excellent example of a trademark. A trademark can also be a phrase or slogan associated with a product as well. In keeping with the soft drink theme, an example of a trademarked slogan is The Choice of a New Generation® (Pepsi®, 1985). A service mark is the same as a trademark, except it identifies the source of a service or services instead of goods. An example of a service mark is Terminix®.
Trademarks and service marks are issued by the United States Patent and Trademark Office. Trademarks andservice marks can be stylized, such as a word or words that are written in a certain font or size or shape, or they can be generic. Trademarks will remain valid and enforceable as long as the applicant or a representative meets all filing requirements and deadlines after the trademark has been registered.
What is a patent?
A patent is property right obtained by an inventor intended to allow him/her/it to prohibit others from making, using, offering for sale, selling, or importing an invention in exchange for public disclosure of the invention. The invention must typically be a novel or a non-obvious article or process in order to qualify for patent protection. There are three types of patents: 1) utility patents for invention of a new process, machine or other article of manufacture; 2) design patents for invention of a design of an article of manufacture; and 3) plant patents for the invention of a distinct and new plant variety. Heat tolerant broccoli is an example of a patent (No. 6,784,345).
Patent protection is granted by the United States Patent and Trademark Office and generally lasts 20 years.
What is a copyright?
A copyright is a protection for an original and tangible work of authorship, including books, music and movies. An example of a copyrighted work is Harry Potter and the Chamber of Secrets © 1998 by J.K. Rowling. A copyright allows the author the exclusive right to do and authorize, among other things, reproduce the work in copies, distribute copies to the public for sale or rental or lease, and to perform the work publicly (in the case of literary, musical, motion picture, dramatic, and choreographic works).
The United States Copyright Office grants copyright protection. A work that was created on or after January 1, 1978, is automatically protected from the moment of its creation 70 years after the death of the author. There are different terms of copyright protection based on anonymous works and works that were created for another in exchange for payment.
Stay tuned for next month when I discuss the process for obtaining a trademark in more detail.
This column is the work product of L+G, LLP, which has offices in Hollister and Salinas. Paul Rovella is an attorney with L+G, LLP. You may contact the author at (888) 757-2444 or pa***@lg**********.com.
