PRACTICE AREAS
What is Intellectual Property Law?
Intellectual Property, commonly referred to as “IP,” refers to a body of law that offers authors, inventors, individuals and companies the rights to use certain types of intangible property they have created and to exclude others from use of that same property. There are four major types of IP, each having different rights and requirements for protection of those rights: copyrights, trademarks, trade secrets, and patents.
A copyright is a set of rights afforded to an author of an original work, fixed in a tangible form, including but not limited to books and periodicals, computer software, audiovisual works, and visual art such as photographs, paintings and sculptures. A copyright owner has several exclusive rights, including the right to reproduce the work, distribute the work, prepare adaptations called “derivative works,” perform the work publicly, and display the work publicly. While copyright registration is not required, registration is a prerequisite for instituting an infringement action against a third party infringer. Copyright protection generally lasts throughout the lifetime of the author plus an additional 70 years, offering, among other things, protection against unauthorized use, display, and reproduction of the work by other parties without the author’s permission.
A trademark is any word, name, symbol, or other designation that is used to identify the source of a party’s goods or services. A trademark is a symbol used with a party’s goods, while a service mark is a symbol used with a party’s services. In practice, the term “trademark” is used broadly in reference to both types of marks. A trademark owner may protect its mark against infringement by another party’s confusingly similar mark on similar goods or services and against dilution by another party’s use of a similar mark on dissimilar goods and services. In the United States, federal trademark protection is available as long as the mark is used in interstate commerce. Registration is not a prerequisite for instituting an infringement action in the United States against a third party; any distinctive trademark or trade dress that is used in commerce may be protected under common law. However, registration provides the owner with additional benefits above and beyond those afforded to owners of common law trademarks. The owner of a registered mark may prevent registration of another party’s mark that it believes that registration of the mark will damage the owner’s business. An opposition proceeding before the Trademark Trial and Appeal Board is available if the mark has not yet been registered but has been published for opposition. A cancellation proceeding may be initiated against a mark that has already been registered. Trademarks and certain forms of trade dress can be registered with the various states, the federal government, and the governments of most countries.
In its simplest form, a trade secret is any type of information that gives a business a competitive advantage by virtue of the information being kept secret. Trade secrets may include information such as manufacturing methods and processes, formulas, marketing data, and other proprietary data. Unlike other IP, such as copyrights and patents, a trade secret is not an exclusive right to use the information. Indeed, another party may independently develop the same information while the first party is able to indefinitely protect its trade secrets. Generally, trade secrets are maintained through the use of confidentiality agreements and other security measures. Unlike the other forms of IP, trade secrets are generally not protected under federal law, but rather state law.
A patent is a right granted to an inventor who invents or significantly improves any new and useful process, machine, article of manufacture, or composition of matter. A patent owner has the exclusive right to use the patent, and the owner also has the right to prevent others from making, using, selling, or offering to sell its invention. Patent protection is generally available for 20 years from the time of filing an application with the U.S. Patent and Trademark Office.