Briefly . . .

COPYRIGHT
Copyright is the right of an author to make copies of his or her writing.

With advances in both the law and technology, “writing” has come to include not only the written word, but drawing and painting, music, photographs, movies, computer codes, architectural and landscaping plans, and the designs for boat hulls. Three-dimensional objects such as sculptures and jewelry can also be copyrighted.

“Copying” has also expanded beyond making physical copies (like books and records) and now includes broadcasting over the airwaves, transmitting over the internet, performing on stage or displaying in an art gallery. Depending on what kind of “writing” it is, there are different kinds of “copying”.

Copyright exists from the moment of creation. “Creation” means the fixing the work in a tangible medium, i.e., writing it on a piece of paper, or recording it on to tape or film. Copyright then lasts for the life of the author plus 70 years. At the end of that time the work “passes into the public domain”, and anyone can copy it or use it without permission of the author or the author’s heirs.

The U.S. government has a Copyright Office where an author can register his or her works. Even though registration is not necessary for having a valid copyright, it is useful and advantageous to have for many reasons.

Works that are protected with copyright should have a copyright notice on them. A proper copyright notice contains the following three elements:

• the word “Copyright” or the symbol ©
• the year of publication of the work
• the name of the copyright owner

A copyright notice should go in a place where it will be noticed by a viewer of the work, but it can be discrete and does not have to interfere with or detract from the work of art itself. In books, it usually goes on the page just after the title page. In music, it goes on the body of the cassette or CD and the packaging. In movies, it’s usually in the credits at the end of the movie and also on the box of the videotape or DVD. In sculpture it’s often on the base of the sculpture in an unobtrusive place. In posters it’s often right on the front of the poster in very small type. On the other hand, in expensive limited edition prints, it’s permitted to not place it on the art at all, but on the certificate of authenticity that goes with the print.

Here’s a little mind game from law school. Imagine that by some wild coincidence two people wrote exactly the same poem without copying from each other in any way. In such a case each person would have a valid copyright in their work and could exercise their rights as copyright owners. Moreover, neither would be guilty of copyright infringement (copying) – after all, there had been no copying. Now keep this example in mind when we turn to patents.

PATENT 
Just as copyrights protect writing, patents protect inventions. Think about Thomas Edison inventing the light bulb, or Thomas Land inventing the Polaroid camera. An invention is a useful device that never existed before. Patents can also cover things like chemical formulas, or recipes, or industrial processes. One important hurdle in getting a patent is that you have to do more than just think up an idea – you have to make it work. You have to make a working prototype or sample. It’s not enough to just write down how you think it will work. As they say in the trade, you have to “reduce it to practice”.

Mind game, Part II: By some wild coincidence two people invent exactly the same device without copying from each other in any way. Inventor 1 patents his device before Inventor 2 gets around to doing so. In such a case, if Inventor 2 uses his invention at all he will be infringing on the patent of Inventor 1. Patents are not about copying – they are about simply having or using the invention. In this way patents are much more powerful than copyrights.

TRADEMARK
Trademarks are quite different from copyrights and patents. Look at this:

I’m sure you recognize that as the symbol of the Mercedes-Benz brand of luxury automobiles. It is a very famous and effective trademark.

A trademark is a word, phrase, symbol or design that goes on a product. Compare that to copyrights and patents: writing and inventions are the products, while trademarks are used on the products.

A trademark serves two purposes: it indicates who made the product, and it is a sign of the quality of the product. Trademarks represents different brands of products.

When you see the Mercedes-Benz symbol, you immediately know that the product is a car, which was produced in Germany, and has a reputation for high quality. You know it’s not a Volkswagen or a BMW. A trademark is a way of distinguishing your brand of a product from all the other brands.

In addition to trademarks, there are also servicemarks, which are used in connection with services rather than products. Services include things like construction, transportation, advertising and accounting or . . . legal services.

The owner of a trademark can register that trademark with the federal government if the owner is doing interstate commerce, that is, selling in several states, or if the owner has the intention of selling in several states in the coming months. If the owner of a trademark is only doing business within one state, then the owner can register with the state government.

Trademark owners can use symbols, just like copyright owners, to warn the rest of the world that the trademark is private property and cannot be used without the consent of the owner. There are two trademark symbols

® is only for owners who have received registrations from the federal government

TM is for owners who have not received registrations from the federal government

Be careful: there are significant penalties for using the ® symbol when the trademark has not actually been registered with the federal government.

Trademarks present something of a challenge to business owners. Naturally, they want the maximum possible ownership and exclusivity for their brand name or symbol. They also frequently want a mark that will somehow describe the product, making it easy for potential customers to readily identify the product when they see or hear the mark. In the world of trademark, these two desires are not easily reconciled.

Consider the brand name “Holiday Inn”. When you hear it you quickly imagine a place to stay overnight while you’re away on vacation. Similarly, when you hear “Rent-A-Center”, you imagine a place where everything is for rent (in this case, appliances, furniture and such). Those brand names would be considered “descriptive” since they describes what the product or service is. Unfortunately, suggestive names make for relatively weak trademarks.

In contrast, the strongest trademarks are “coined”, “arbitrary” or “fanciful.” These are words that have absolutely no meaning apart from the products or services they are associated with. Examples of “fanciful” trademarks are Kodak, Xerox and Exxon. These make the strongest trademarks. Of course, they tell the public absolutely nothing about the products under the label.

A third category is “suggestive” marks, which are stronger than descriptive marks but weaker than fanciful marks. Marks like “Coppertone” and “Wheaties” hint at what the products are without actually coming out and naming or describing them.

The weakest category is “generic” marks. A generic mark identifies the category of goods to which the product belongs. A generic brand name would be the “Apple” brand of apples. A particular seller of apples would not be permitted to have that as a trademark because everyone who sells apples needs to use the word “apple”.

Interestingly, several words we now commonly use were trademarks at one time, and have since slipped into generic use. These include: cellophane, aspirin, cola, granola, kerosene, linoleum, dry ice and zipper. Some trademarks that are at risk of becoming generic are band aid, fiberglass, laundromat, magic marker and prozac.

Obviously, some suggestive or descriptive marks do become strong trademarks. How does that happen? Through a long and expensive process of advertising and promotion, eventually resulting in the general public associating the suggestive or descriptive brand name with the seller’s particular product, to the exclusion of all others. It is then said that the mark has acquired “secondary meaning”. Proving to the US Trademark Office that the mark has acquired “secondary meaning”, in order to obtain a trademark registration, is also difficult and costly. That involves having a marketing or testing company design and carry out a scientific survey of consumers across the nation, asking about their shopping and spending habits and their awareness of your brand and the brands of your competitors. Possibly, your competitors will be actively trying to prevent you from obtaining your registration. So there are formidable obstacles, although countless trademark owners have done it.

So, the seller of a product or service faces a decision: a suggestive or descriptive brand may inform and draw customers, but may not be readily eligible for a federal trademark registration. A fanciful brand will be more readily registered, but won’t tell the public anything about the product. Perhaps the best advice for new ventures is – don’t invest too much in logos, labels and stationery until you’ve really considered your name.