LearnAboutLaw Staff July 2007
Intellectual Property (IP) refers to the ownership rights that attach to ideas and creative work product. IP is no different from any other property: it can be sold, bought, rented, divided, licensed, loaned, given, pledged, and taxed. The most powerful IP right of all is the owner’s right to exclusive use–in other words, the right to prevent others from unauthorized use. IP is arguably the most rapidly developing area of business law. IP litigation is becoming more common, and consumes the energies of our nation’s largest companies. Recent lawsuits by record companies against digital music upstart Napster and legal battles over domain name ownership foretell a growing information economy punctuated by increasingly frequent IP legal confrontations.
IP divides roughly into four disciplines: Trademark, Copyright, Patent, and Trade Secret. These disciplines are often confused.
Trademarks and Service Marks
Generally speaking, a trademark is a distinctive word, symbol, or picture that a seller of goods or services affixes to distinguish its products from those of others. The term “service mark” is sometimes used to denote a trademark that refers to services–yet even judges routinely use the terms “trademark”, “service mark”, and “mark” freely.
The great body of trademark law in the U.S. comes from Federal law, which traces its authority from the Constitution. The Federal Statute governing trademarks is called the Lanham Act, which appears at 15 U.S.C. §§ 1051-1127. But each state may have its own body of statutes and cases, and its own procedures for registering trademarks.
Trademark rights arise from use alone, but Federal Law (and individual states) provides an administrative registration scheme. See the chapter below on trademarks for more information. To learn more about trademarks, read Strong vs. Weak Trademarks.
Copyright protection extends to original works of authorship that are fixed in a tangible form of expression. Unexpressed ideas are not copyrightable. Copyright protection can extend to literary, dramatic, musical, artistic, and certain other intellectual works.
Copyright protection arises automatically upon the creation of a qualifying work. Copyright protection has a limited lifespan. When a copyright expires, the work becomes part of the “public domain”, and may be freely reproduced and distributed without permission. See the chapter below on Copyright for more information.
Roughly speaking, a patent is a property right granted by the U.S. Patent and Trademark Office (PTO) to the inventor of either a process, machine, design, or plant that is original, useful, and non-obvious. Patent law is IP’s most complex discipline, and this book can only hope to provide a general overview. See the chapter below on Patents for more information.