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April 15, 2023 3
DEFINITION
TRADEMARKS• A word, name, symbol, or de-vice used
to indicate origin, quality, and ownership of a product or service.
COPYRIGHTS• Protection granted to authors of original
works of authorship, fixed in a tangible form.
April 15, 2023 4
DEFINITION Cont.…
PATENTS• Grant of right to exclude another from
making, using, selling, or importing a patented invention or discovery.
TRADE SECRETS• Any valuable business in-formation that,
if known by a competitor, would afford the competitor some benefit or advantage.
April 15, 2023 5
What is protectable
• TRADEMARKS• A trademark is used in the advertising
and marketing of a product; a service mark is used in the advertising and marketing of a service.
April 15, 2023 6
What is protectable COPYRIGHTS• Copyright protects original works of
authorship, including literary, dramatic, musical, artistic, choreographic, pictorial, sculptural, and other intellectual works, including motion pictures, sound recordings, computer programs, and architectural works, allowing the owner the right to prepare derivative works based on the work and to reproduce, distribute, perform, and display the work.
April 15, 2023 7
What is protectable
PATENTS• Utility patents protect any new and
useful process, machine, or composition of matter, design patents protect new, original, and ornamental designs for articles of manufacture; plant patents protect distinct and new plant varieties that are asexually reproduced.
April 15, 2023 8
What is protectable
TRADE SECRETS• Any information can be protected as
long as it has commercial value, it is not in the public domain, and its owner has made reasonable attempts to maintain its secrecy. Information may include customer lists, marketing plans, financial information, takeover targets, and business methods.
April 15, 2023 9
HOW RIGHTS ARISE
TRADEMARKS• Rights arise from first use of the
mark; registration is not necessary.COPYRIGHTS• Copyright protection arises from
the time the work is created in fixed form; registration is not necessary
April 15, 2023 10
HOW RIGHTS ARISE
PATENTS• Rights arise only upon issuance of
the patent by the U.S. Patent and Trademark Office (USPTO).
TRADE SECRETS• Rights arise as soon as the trade
secret comes into existence. No registration or other formalities are required.
April 15, 2023 11
DURATION OF PROTECTION
TRADEMARKS• Marks are protected as long as they are
in use and do not become generic. For registered marks, the registrant must prove use to USPTO between years 5 and 6 and every ten years after registration. Registration lasts for 10 years and is renewable.
April 15, 2023 12
DURATION OF PROTECTION
COPYRIGHTS• Works are protected during the author's
life (or last surviving author) and for 70 years there-after. If work is made for hire, copyright lasts for 95 years from publication or 120 years from creation, whichever is shorter.
April 15, 2023 13
DURATION OF PROTECTION
PATENTS• Patent protection exists for 20 years
from the date of filing an application for utility and plant patents and for 14 years from the date of grant of a design patent. Maintenance fees are required for utility patents at three and half, seven and half, eleven and half years after issuance date.
April 15, 2023 14
DURATION OF PROTECTION
TRADE SECRETS• Trade secrets may exist perpetually as
long as they are properly protected.
April 15, 2023 15
COSTS AND FORMALITIES
TRADEMARKS• If federal registration is sought,
application must be filed with USPTO; paper application filing fee is $375 per class or $325 per class if filing electronically. Application process takes from one to two years. Preapplication search should be conducted.
April 15, 2023 16
COSTS AND FORMALITIES
COPYRIGHTS• If federal registration is sought,
application must be filed with U.S. Copyright Office; paper application filing fee is $45. Application process takes from three to four months. No need for preapplication search.
April 15, 2023 17
COSTS AND FORMALITIES
PATENTS• Application for patent must be filed with
USPTO. Application filing fee for utility patent is $1,030 ($515 for small entities). Application process takes 2 years or more. Search should be conducted prior to application.
TRADE SECRETS• No application or registration process; however,
there may be costs involved in implementing measures to protect secrecy of trade secrets.
April 15, 2023 18
INFRINGEMENT TEST
TRADEMARKS• Is there a likelihood of confusion
between the marks?
COPYRIGHTS• Have any of the exclusive rights of the
copyright owner been violated by impermissible copying or unauthorized use of the work?
April 15, 2023 19
INFRINGEMENT TEST
PATENTS• Does the accused invention fall within
the claims language of the patent or is it substantially equivalent?
TRADE SECRETS• Has a trade secret been
misappropriated?
April 15, 2023 20
MARKING REQUIREMENTS
TRADEMARKS• Marking is not required but is
recommended. Registered marks are displayed with ® symbol.
COPYRIGHTS• Marking is not required but is
recommended. Notice: © symbol (or similar indication), year of first publication, and owner's name.
April 15, 2023 21
MARKING REQUIREMENTS
PATENTS• Marking is not required but is
recommended. Notice consists of word patent (or its abbreviation) and patent number.
TRADE SECRETS• Marking is not required but is
recommended. Documents should be marked with confidentiality legends or other notices.
April 15, 2023 22
GOVERNING LAW
TRADEMARKS• 15 U.S.C. §§ 1051 et seq.COPYRIGHTS• 17 U.S.C. §§ 101 et seq.PATENTS• 35 U.S.C. §§ 100 et seq.TRADE SECRETS• Various state statutes, cases, and private
agreements.
April 15, 2023 23
Deborah E. bouchoux “Intellectual Property Rights. The Law of Trade Marks, Copy Rights Patents and Trade Secrets Cengage Learning, Third Edition.
Reference
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