TRADEMARK, COPYRIGHT & PATENT LAW

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Many people get trademarks, copyrights and patents confused.  To add to the confusion, there are trade names, trademarks and servicemarks within the trademark field.  It's not difficult to sort them out, however.

A trade name is a name used by a business to identify itself.  Apple Computer is an example.  A trademark is any name, word, symbol or design used by a business to identify its goods and distinguish them from those sold by other businesses.   The apple with a bite out of it used by the Apple Computer Company is an example of a trademark .  A servicemark is a mark used to distinguish the services offered by a company from those of other businesses. An example is Amerimaid, a company that provides cleaning services.

The notation 'tm' or 'sm' after a word or symbol indicates that the owner is putting the world on notice that the preceding word or symbol is a trademark or servicemark of its business.  You can only use the 'r' in a circle if you go through the process of registering the mark with the United States Patent and Trademark Office. There is a comparable registration process with the various states if the use is only intrastate.

Copyright is an area of the law that deals with who has the right to copy a work (whether it is a book, a record, a videotape, or a file stored on a computer).  You can buy a book and own the right to what happens to that copy but you do not have the right to copy the book and give or sell the copies to someone else without the permission of the owner of the copyright.  

The owner of the copyright is the person who created it, unless the creator was working for hire, in which case the employer is the owner.  In the publication world, the different rights (serial rights, foreign rights, republication rights, etc.) can be quite complicated in its own little world.

The creator of the work (assuming he or she is not working for hire) has all the rights in the work from the moment of creation.  There is no 'tm' or 'sm' mark in copyright law.  The 'c' in a circle can only be used when the work has been registered with the Copyright Office, which entitles the owner to go to federal court to enforce his or her rights and collect damages and other fees.

Patents apply to inventions (the better mouse trap, for example).  They are granted after an extensive investigation by the U.S. Patent Office and last for a finite period of time.  The applications are complicated and should follow a patent search to see if someone hasn't beaten you to the idea.  There is a simplified procedure for gaining protection during a two year period in which you hopefully find a buyer for your brilliant idea.  After that, the idea becomes public. The grant of a patent does not represent a validation by the government.  It only gives you the right to file suit in federal court and try to stop someone who is ripping you off.  

Finally there are trade secrets.  Coca-Cola is the best example.  The formula for Coke is still secret after all these years.  If you have a process that can be protected, it is far better to keep it secret than try to patent it and only gain protection for a short period of time rather than forever.

If you've written something, or invented the next great golf ball, give us a call.

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