An original invention or creative work that makes a business or product special and valuable in the marketplace is most likely considered intellectual property. The definition of intellectual property covers several tangible and non-tangible entities such as music, writings, ideas, inventions, logos, slogans, sounds and designs. Protecting intellectual property enables an individual or business to retain the competitive edge developed as a result of the original idea or work.
Intellectual Property Definition
The Stopfakes.gov website defines intellectual property as “any innovation, commercial or artistic, or any unique name, symbol, logo or design used commercially.” Intellectual property has two components. First, intellectual is a creative effort, and second, intellectual property has commercial value. When an individual or company creates a business idea, an invention, a logo, a symbol or design, this creative effort may be protected by intellectual property law. Additionally, original song lyrics and music, slogans and website content are also considered intellectual property and may be protected under intellectual property laws.
What Does Intellectual Property Mean?
Intellectual property is protected based on the type of creative effort. For example, an invention or business idea is protected by a patent. A slogan or other authored work may be protected by copyrighting the work. The trademark may also be used to protect authored work, but also encompasses logos, sounds and even colors. For example, the “3M” numeral and letter is a trademark and a protected identifier for the 3M Corporation. Though there is nothing special about the numeral “3“ or the letter “M,” when they are combined, they compose the 3M trademark, and this trademark is protected by law.
Intellectual Property Rights
If a business or individual creates a unique idea or work product, or if the business or individual has improved upon an existing idea or product, that business or individual has the right to protect the idea, invention or creative effort from others taking, selling, using or appropriating the work product or idea as their own. The way to protect the intellectual property depends on the type of idea or work product in question. Different methods may be legally invoked to protect the intellectual property of the business or individual. For example, patents are utilized to protect inventions. Copyrights are used to protect written works and trademarks protect symbols, logos and other designs that identify a specific business or product.
Intellectual Property Protection
The intellectual property of a business or individual may be legally protected, and in many cases, this protection extends beyond the borders of the protection-granting country, as is the case with copyrights. Some protections are only applicable in the originating country, such as patents.
Depending on the type and form of the intellectual property, different legal protective approaches are employed. Patents are utilized to protect inventions. Copyrights are employed to protect original authored works, either published or unpublished. Original authored works include music, dramatic works, literary works and other original recorded forms of expression.
There are four areas of law concerning the protection of intellectual property. These areas are patents, copyrights, trademarks and trade secrets. Legal professionals may specialize in one particular aspect of intellectual property protection, or may work with clients in all four areas.
Patents may be obtained for a unique invention or an improvement upon an existing invention. Patents are obtained for a limited amount of time for an invention, and are specific to the country in which they are obtained. Patents are territorial, which means that for each country where the invention will be used, a patent must be obtained. In the US, patents are legally binding rights that are granted to an inventor through the United States Patent and Trademark Office (USPTO).US patents prevent others from importing the invention into the US for a specified amount of time in exchange for public disclosure of the product or work when the patent is granted.
Copyrights are protections placed on recorded work product. Copyrights may be placed on literary works, music, dramatic works, films, and other original recorded items.The copyright applies to the expression of the work and provides the owner of the copyright with protection against the use of the work without their consent. The copyright holder may take legal action and may seek compensation if the copyright is violated. A copyright is an international right and an individual or business may obtain a copyright for a work product that is recognized worldwide.
Until March 1, 1989, a recorded work had to contain a copyright notice in order to be recognized as a copyrighted work by the court. However, this is no longer the case. Even though a copyright notice attached to the work is no longer required, it is still a good idea to have a copyright notice attached to the work. When a copyright notice is clearly stated, the potential copyright infringer is not able to claim in court that they did not know the work was copyrighted. A valid copyright notice includes the “C” in a circle, the word “Copyright,” the date the work was first copyrighted, and the name of the author or owner of the copyright. A copyright lasts for the life of the author, plus 70 years. The exceptions include situations like if the work was published under a pseudonym or anonymously, or was published in the course of the author’s employment. In these cases, the copyright lasts from between 95 to 120 years beyond the death of the author. All works published in the US prior to 1923 are now considered “public domain” works.
In the United States, the US Copyright Office handles registrations of copyrights. In practice, there are a few things the copyright owner must do to establish a copyright for their work However, copyright protection for US copyrights in other countries varies by country, but most industrialized countries recognize copyrights originating in the US due to agreements reached in the
Trademarks are protections placed on symbols, sounds, words and names that distinguish certain products from others. For example, all around the world, the Coca-Cola trademark of the cursive “C”s, the and the words “Coca-Cola” in white on a red background is well-known in many countries and cultures. Few trademarks are as widely recognized as the Coca-Cola brand, but trademarks may be applied to any company or business entity. An example of a sound as trademark would be the Intel “tune” or the Windows shutdown sound. A trademark for a sound may be applicable if the sound, or group of musical notes, is recognized by a brand.
Whereas patents are valid for a limited amount of time, trademarks may be reapplied and remain intact forever, as long as the trademark is used for commercial purposes. With the example of the Coca-Cola trademark, this recognizable logo has been in place for well over 100 years. The US Patent and Trademark Office (USPTO) handles the registration of trademarks, as well as patents.
Trade secrets are formulas, patterns, designs, instruments, practices or processes that are not publicly or commonly known. Trade secrets provide an economic advantage over competitors or competing products for a business or individual. Trade secrets may also be known as “classified information” or “confidential information.”
Intellectual Property Law
Though often intellectual property violations may be pursued in civil court for damages to compensate the patent, copyright or trademark holder, criminal charges may also apply. In recent years, US federal law has created criminal sanctions for infringements of intellectual property. One example is software and media piracy laws. An individual may now be criminally prosecuted for pirating software or creating “bootleg” DVDs or CDs. Provisions for criminal prosecution of copyrighted works infringement are defined in 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. Federal prosecutors do indeed bring cases against those who commit copyright and trademark infringement under these provisions, both to curtail the perpetrator of the infringement, and as a deterrent to others who might do the same. However, in some situations, copyright infringement is not criminally pursued.
International Intellectual Property Law
Most industrialized countries are committed to providing international protections of intellectual property. The US has entered into a number of international agreements, and belongs to various organizations, to protect the intellectual property interests of citizens of foreign nations. One such organization is the World Intellectual Property Organization, or WIPO. Another such organization is the World Trade Organization (WTO). Both organizations have worked toward setting international intellectual property protection standards. The WTO’s adoption of the Trade Related Aspects of Intellectual Property Rights on September 27, 1994 is the most comprehensive international agreement and contains enforcement and punishment provisions. The cooperation of the US on a global level with international protection of intellectual property helps to ensure global fair trade and promotes international investment and trade.
Intellectual Property Paralegal
Attorneys who practice in areas of Intellectual Property Protection employ paralegals who specialize in this type of practice. The Intellectual Property paralegal’s general duties might include gathering and compiling information regarding domestic and international intellectual property rights, case law regarding intellectual property matters, coordinating international filings with foreign entities for international cases, researching the USPTO records and databases, writing responses to USPTO actions and oppositions, researching trademark information, and assisting in litigation.
More specialized duties of the paralegal would include research to ensure protection of clients’ trademarks and copyrights, ensuring the proper use of clients’ trademarks and copyrights, and devising strategies for filing client patents, both domestically and internationally. For clients who hold copyrights, the paralegal might draft “cease and desist” letters when violations of the copyright are discovered. Also, the paralegal would follow up with the renewal processes for client copyright and trademark applications and registrations.
Paralegals specializing in Intellectual Property areas would also be responsible for copyright licensing agreements and renewals, as well as filing statements of use, affidavits of use and applications for clients. The paralegal may also review client documents and agreements to further protect the client’s interests, and ensure the client is not infringing on copyrights owned by others. The paralegal might also maintain a schedule for client copyright and trademark registrations and renewals, as well as schedule and arrange for payment of annuities for patents in foreign countries.
The Intellectual Property paralegal is a specialized area in the legal profession. As time goes on, and domestic and international laws concerning intellectual property rights become more developed and defined, the tasks of the paralegal who works in the practice of Intellectual Property will find their skills are very much in demand.