A. How Intellectual Property Law Works

Intellectual property laws, along with court decisions and regulations, establish rules for the following activities:

1. selling or licensing of intellectual property
2. resolving disputes between companies making or selling similar intellectual property products and services, and
3. the registration and administration of intellectual property.

Intellectual property laws don't prevent someone from stepping on the owner's rights. But the laws do give an owner the ammunition to take a trespasser to court. This is the most well-known benefit of owning intellectual property: The owner acquires exclusive rights and can file a lawsuit to stop others who use the property without authorization. If the intellectual property owner does not confront the person or company or who has acted without permission, then the illegal activity will likely continue.

Types of Intellectual Property Laws

Intellectual property law consists of several separate and overlapping legal disciplines, each with their own characteristics and terminology.

• Patent law. There are three types of patents: utility, design, and plant. Utility patents (the most common patent) are granted to the inventor of a new, nonobvious invention. The utility patent owner has the exclusive right to make, use, and sell the invention for a limited term -- usually 17 to 18 years. A design patent (for a new but nonfunctional design) lasts 14 years after the date the patent issues. A plant patent expires 20 years from the date the patent was filed.
• Copyright law. Copyrights are granted for original creative expressions produced by authors, composers, artists, designers, programmers, and similar creative individuals. Copyright law does not protect ideas and facts; only the manner in which those ideas and facts are expressed. Copyright protection lasts a long time, often more than 100 years.
• Trademark law. Trademark law protects the rights of businesses who use distinctive names, designs, logos, slogans, or other signifiers to identify and distinguish their products and services. This protection can last as long as the company uses the trademark in commerce -- for example, many trademarks such as Coca-Cola and General Mills have been protected for over a century.
• Trade secret law. A trade secret is any confidential information that gives a business a competitive advantage. Under trade secret law, the owner of this confidential information can prevent others from using the information if it was obtained illegally. Trade secret protection lasts for as long as the business maintains the secret.

Intellectual Property Overlap

Sometimes, trade secret, copyright, patent, and trademark laws intersect with each other with respect to a particular product or service. Some common examples of this are as follows:

• Trade secret and patent. It is possible to pursue a patent application while simultaneously maintaining the invention as a trade secret, at least for the first 18 months of the U.S. patent application process. The U.S. Patent and Trademark Office (USPTO) treats applications as confidential until they are published. Unless the applicant files a Nonpublication Request (NPR) at the time of filing, and doesn't file for a patent outside the U.S., the PTO will publish the application within 18 months of the filing date.
• Copyright and trademark. It's not uncommon for an item to be protected under both trademark and copyright law. For example, the expressive artwork in a package design may be protected by copyright, while the overall look and feel of the package may be protected as a form of trademark. Likewise, an advertisement may include some material covered by copyright (for example, a jingle) and other material covered by trademark (the product or company name). The difference here is that copyright protects the literal expression, while trademark protects whatever is used to designate the source of a product or service being offered in the marketplace.
• Patent, copyright, and trademark. Patent law can intersect with copyright and trademark law in the case of certain products. For example, the designer of a toy or of jewelry may protect the device's name or appearance (as a trademark), the design of the item (design patent), the appearance of any artwork or graphics (copyright) and the novel, nonobvious functionality of the device (utility patent).

International Laws

Most countries in the world have entered into intellectual property treaties that afford members mutual rights. This does not mean that anything protected in the U.S. will be protected abroad. However, intellectual property that is protected in America may achieve protection abroad under the standardized rules established by the various treaties. For example, the Madrid Protocol has standardized the process for obtaining trademark protection among member countries. Similarly, the Berne Convention establishes international copyright principles, and the Paris Convention and the Patent Cooperation Treaty offer harmonization for owners of patents. Trade secrets may receive international protection under GATT (General Agreement on Tariffs and Trade).

Next: B. Determining What Rights Apply to Your Work

Back to Top