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Overview

Student Legal Services - ASUW

Intellectual Property Overview

"I am a creative mastermind and I would like to know what legal protections I can obtain to protect my creations. Do I want copyright, trademark, or patent protection?"

It depends on the form of your creativity. Below is an overview of benefits associated with copyrights, trademarks, and patents. More information on the mechanics of filing these documents is available at the U.S. Patent and Trademark Office (www.uspto.gov) and the U.S. Copyright Office (www.copyright.gov).

Copyright Protection
If you have created a work of art - such as a song, poem, story, painting, sculpture, or some other literary, artistic, or musical work - you want copyright protection. The intent of copyright protection is to provide a measure of protection and legal recourse against those who would copy and use another's original work. For example, if you write a song or a story and you want to share it with the world while protecting your work from being used by someone else, you should obtain copyright protection for it. Clearly no amount of legal protection can actually prevent someone else from using your work if you make it available. What copyright protection does is give you a means to recover damages from the person using your work without your permission.

A key concept in the area of copyright law is authorship. The word "authorship" denotes the concept that the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher.

Notably, copyright protection arises the instant the creation is "fixed in tangible form." In other words, copyright protection applies to the creation, not the idea behind the creation. Once you paint the picture, write the story, or record the song copyright protection attaches.

You may obtain preliminary copyright protection by adding to your work a phrase of the form " (year of publication) (author's name)." For example, if my name is John Q. Creative I could gain some preliminary copyright protection on my awesome new poem by putting at the end of my work (or the beginning) " 2009 Creative." This protection is preliminary in the sense that it does not offer the same level of protection as a copyright registered with the U.S. Copyright Office.

So, why bother to register the work with the government? Registering the copyright makes it a whole lot easier to recover damages to you resulting from someone else's infringement on your copyright. When you register your work you also become eligible to recover damages made available by statute; otherwise, you will only be able to recover damages in the amount of proven lost profits and actual damages. Proving lost profits and actual damages can be difficult, expensive, and time consuming. Therefore, prudence directs that you should register your work in order to get the best protection available.

Trademark Protection
If you have a business and you create a distinctive word, name, symbol, or any combination of these intended to identify your company or product as distinct from other companies or products, you are in the realm of trademarks. Essentially, trademarks are brand names. For example, picture the Golden Arches or the "swoosh." That you almost certainly thought of McDonalds and Nike just now exemplifies the power of a good trademark.

If your company provides services instead of producing goods, your unique word, name, symbol, etc., becomes a service mark as opposed to a trademark. Otherwise, trademarks and service marks are functionally identical.

A trade or service mark is considered distinctive where it is comprised of unique logos or symbols, words created specifically to be used as a mark (e.g. Exxon or Kodak), words invoking imaginative images in a particular context, words that are surprising or unexpected in the context of their use, words that cleverly connote qualities associated with the product or service without literally describing the qualities.

When you register your trademark, you give notice to the nation that you own that trademark; eventually, when your business grows and becomes a household name, your trademark will be quite valuable. It is not uncommon for businesses to be bought for the strength of their trademark alone. Furthermore, registering your trademark gives you the ability to take your trademark infringement claim to federal court, where you may be able to recover greater damages resulting from the infringement. Also, if you register your trademark, you may file your trademark with the U.S. Customs Service to prevent importation of foreign goods infringing on your trademark.

Patent Protection
So, you prefer to express yourself by inventing new gizmos or improving existing ones? Well, if you want to prevent someone from producing your gizmo without your permission you want to file a patent. Patent protections extend property rights over the invention or improvement. This means that you may exclude others from making, using, or selling your invention in the U.S. without your permission.

It is noteworthy that you may not obtain patent protection for your bright idea or suggestion. You have to build the thing, or make plans sufficiently precise that someone else could make it.

Perhaps the most important aspects of patent protection are that the invention or improvement must be novel and non-obvious. The novelty of the invention depends on it being different from all previous products, devices, methods, and documents describing the thing. An invention is considered novel when no single prior art item describes all of the elements of the invention. "Prior art " generally includes descriptions of essential characteristics printed anywhere in the world, descriptions more than one year old, public knowledge of the invention showing its existence prior to your rendering, relevant current or expired patents relating to your invention, and relevant patent applications made prior to your conception of the invention or improvement.

The non-obvious requirement relates to the unexpected or surprising results arising from your invention. The non-obviousness of your invention is assessed through the eyes of a person with ordinary skill in the type of invention you have created. For example, your new gizmo would have to produce results which would not be obvious to someone familiar with the art (this is "art" as in "prior art") and function of gizmos.

Where to now?

At this point, further information may be found on one of the other pages dedicated to each of copyright, trademark, and patent protection. If you prefer to go right to the source, visit the U.S. Patent and Trademark Office (www.uspto.gov) or the U.S. Copyright Office (www.copyright.gov) for more information.

Note that this page and the other pages on copyright, trademark, and patent protection are intended not as legal advice, but, rather, as jumping off points to aid your decision to retain an attorney or do further research on your own. Now go be creative!


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