April 19, 2021

Volume XI, Number 109


April 19, 2021

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April 16, 2021

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Trademarks, Copyrights, and Patents: Why Business Owners Should Care About Intellectual Property

Intellectual Property, often referred to simply as IP, is a legal term covering various forms of valuable business assets. The three broad, primary areas of IP are: trademarks, copyrights, and patents.

Many people confuse trademarks, copyrights, and patents, oftentimes calling a trademark a patent and vice versa. Although there may be some similarities among these kinds of intellectual property, they are very different and serve unique purposes. The following briefly explains each one.

Trademarks Overview

A trademark is anything that is used, or intended to be used, to identify the goods or services of one company from the goods or services of others. In the business world, a trademark is commonly referred to as a brand name or “brand.” Trademarks (which also covers "service marks") include words, names, symbols, and logos such as “Coca-Cola” and Nike’s famous “swoosh” logo. Trademarks typically appear on the actual product or its packaging, whereas service marks appear mostly in advertising for the services.

A trademark is one of the most important business assets that a company will ever own because it identifies and distinguishes the company and its products in the marketplace from its competitors. Therefore, it is prudent for all business owners to take sufficient action to protect and enforce its trademarks.

As a trademark owner, you can stop others, including your competitors, from using your trade mark or a confusingly similar one. One of several effective ways to protect a trademark is to register it with the state or federal government. (Future blogs and articles will review the various ways to protect a trademark and what benefits are gained by registration and other protection means as well as the various options to enforce trademark rights and what benefits are gained from the enforcement.)

Importantly, before you and your company adopts, introduces, or launches a new trademark/brand in the marketplace, it is essential that a search is conducted to ensure there is not another trademark already registered (with the federal and/or state government), or being used in commerce (known as a “common law” trademark), that conflicts with or is confusingly similar to your new (or even an existing) trademark, otherwise the use of your trademark can be stopped under the law, costing you valuable time and potentially significant expense.

Copyrights Overview

Copyright is a form of protection provided to the creators of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Copyright law generally provides the copyright owner the exclusive right to use and reproduce the copyrighted work, to prepare derivative works, to distribute copies or video/phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly for a very long period of time (for example, 95 years after the work is published by your company).

A copyright protects the “form of expression” (for example, the writing itself) rather than the subject matter of the writing (such as an invention, which a patent can protect) or the brand name or logo contained in the creative work (which trademark law can protect). Copyrights are registered with the Copyright Office of the Library of Congress (there is not a similar state entity as there is in trademarks).

Therefore, copyrights can be used to protect your company’s original creative works, such as your sales brochures, advertising and promotional pieces, books, videos, songs, photographs, and website content, from being used by others without your permission. As a copyright owner, you can control how your work is reproduced, distributed, and presented publicly. Importantly, you can stop others including competitors from using your copyrighted works or works that are substantially similar to yours.

Although registration is not necessary to own a copyright (simply creating the original work can begin ownership), by registering your work you gain greater, more effective protection. (Future blogs and articles will review the various ways to protect copyrighted works and what benefits are gained by registration as well as the various options to enforce your copyrights and what benefits are gained from the enforcement.)

Patent Overview

There are three primary types of patents, with the two most used being utility patents and design patents.

Utility patents cover the most common types of inventions — those producing some sort of function or result (such as certain machinery or other functional devices).

Design patents protect purely artistic or ornamental designs for manufactured items that do not affect the function of the manufactured item (such as an ornamental face plate for a watch or unique design for or feature of an office chair).

A patent is issued by the U.S. Patent and Trademark Office and is effective only within the USA; international patent protection is, however, also available.

A U.S. patent gives the owner exclusive rights to exclude others from making, using, offering to sell, selling, or importing into the USA the product for a specific period of time (generally 20 years in most situations).

© 2021 Varnum LLPNational Law Review, Volume V, Number 43



About this Author

Timothy K. Kroninger, Varnum law firm, intellectual property lawyer, franchise marketing attorney, Detroit

Tim is a member of the firm’s Intellectual Property and Corporate Law Practice Teams. He has extensive experience in many legal business areas including intellectual property and contract law, corporate and general business law, franchise and marketing law, warranty and disclosure law, and trademark/brand and technology licensing as well as litigation.

Tim’s experience includes working with Fortune 500 companies around the world. He uses his significant experience in law and business to apply a unique perspective, philosophy, and attitude to assist all types and...