Vail Daily column: Part 2 on intellectual property
In the first part of this short series, we defined patents, trademarks, copyrights and trade secrets as protections to various kinds of “intellectual property” and, in turn, defined intellectual property as any product of the human intellect. Patents, trademarks, copyrights and trade secrets protect their owners from unauthorized use of their intellectual property by others.
Patents, we determined, apply to inventions. Pursuant to the U.S. Patent Act, patents grant the patent holder the exclusive right to exclude others from making, using, importing and selling the patented innovation for a limited period of time.
The second category of intellectual property is copyrights. Literally a “copyright” means the right to “copy” where “copy” is defined as “something considered printable” rather than “something to be imitated.” In fact, a copyright prevents or limits “copying” or imitation. A copyright may be properly thought of as the exclusive legal right to reproduce, publish, sell or distribute the matter and form of something (as a literary, musical or artistic work). More technically, copyright protection applies to original works of authorship fixed in any tangible medium of expression that can be perceived, reproduced or communicated, whether directly or with the aid of a machine or device.
This column, my 1,200 or so prior columns, the novels I have penned, Taylor Swift’s latest song, Justin Bieber’s and Lorde’s are all copyright protected.
Protection attaches automatically on the “fixing” of the work of authorship in any tangible medium without regard to whether the work is published or unpublished. In other words, once the work is committed to a written or other “permanent” form, voila! What’s more, an idea can be copied — isn’t every love story or love song basically the same? — but not the manner of expression. It’s the telling of the story that counts.
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Making your mark
In terms of protecting a copyright, registration of the work is essential. If one day your oeuvre is infringed upon, then copyright registration will provide a warm and secure cocoon.
Some well-known trademarks are the Nike swoosh, the Starbucks mermaid, the golden arches and the stylized Coca-Cola lettering. These symbols are familiar to all of us. We see the swoosh, and we think Nike — as that’s precisely the point. It is a sort of marketing shorthand. When you see the golden arches, nothing more needs to be explained. Some trademarks are among the most universally recognized symbols in the world and, as such, they have tremendous value.
The term trademark, in fact, is often used to describe what are actually three categories of names: trademarks, service marks, trade names. To be absolutely on the up-and-up, a “trademark” is a word, name, shape, slogan, color or symbol that is used to identify a particular product. In order to qualify as a trademark, it must be used in connection with the product itself, rather than simply in advertising. To be a trademark, the symbol must be either attached to the product or its packaging.
A service mark, on the other hand, is used to identify services (rather than a product) provided by a company. Take, for example, The Gap’s well-known service mark. Service marks appear on advertising, signs, business cards and letterhead since there is no physical product to which the service mark can be attached.
If the name of a business doesn’t qualify as a service mark because services are not being rendered, then the business name is a “trade name.” A trade name is the name a business uses to identify itself. A trade name can be different from the legal name of the business. Say, for example, the name of my company is United Widgets Inc., but I prefer the sexier sound of Rohn’s Secret (OK, maybe that doesn’t work so well).
In any event, what I could do is register the trade name. Even though the name of the company would remain the same, I would “do business” before the public under the RS trade name.
Keeping a secret
Lastly, we come to trade secrets. The Uniform Trade Secrets Act, which has been broadly adopted, defines a trade secret as:
information, including a formula, pattern, compilation, program, device, method, technique or process,
that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Hmmm. Think of this as the “secret sauce” of a particular business. It is the stuff that makes a particular business hum. A trade secret is something near, dear and particular to a business that was created (or is otherwise owned) by the business that confers upon it an advantage in the marketplace. It is the business’ unique means, methods and devices of doing business. It is the techniques, means and information that a business has created that are particular to it and which if compromised, misappropriated or otherwise disseminated, would threaten to undermine it.
There are three essential elements to a trade secret claim:
The subject matter must be the type of information trade secret was intended to protect, and it must not be generally known;
The holder of the trade secret must establish that reasonable precautions were taken to prevent disclosure of the secret information; and
The trade secret holder must prove that the information was wrongfully acquired by another; that the information was misappropriated.
Unlike patents, trade secrets do not last for a specific term of years. Trade secret protection continues indefinitely until public disclosure of the secret occurs.
Trademarks, copyrights, trade secrets and patents all make our economic world go ‘round and afford legal protection to works of creativity and the mind.
Rohn K. Robbins is an attorney licensed who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce and civil litigation. Reach him at 970-926-4461 and Robbins@SLBLaw.com.