StartupEdge Minnesota Business Guide - Intellectual Property Chart

Intellectual Property Chart

Web	StartupEdge

Free Forms

Calendar

Content Pages

Intellectual Property

Branding & Naming

Links

Copyrights

Trademarks

Patents

What is Protected?

Creative works of authorship (i.e. the particular expression or rendering of an idea, not the idea itself)

Any “thing” used by a company to distinguish itself from other companies in the marketplace

Ideas and Inventions (and to a limited extent, certain discoveries and designs)

Examples

·          A photograph

·          Writings

·          Music

·          Computer program code

·          A painting

·          A Carving

·          A design

·          A name

·          Product shape

·          A color

·          Product packaging

·          Even a sound or smell

·         A machine

·         A manufacturing process

·         A computer program

·         Ornamental design on an item of manufacture

·         Certain kinds of plants

What are the specific legal require-ments?

A work of authorship that is:

·          Fixed in a tangible, non-transient medium (e.g. written onto paper, carved in wood, or recorded on tape, etc.); and

·          Created as the result of an original and minimally creative intellectual endeavor.

Any symbol or “thing” that is:

·          Used in commerce in connection with the goods and services sold; and

·          Helps consumers identify and distinguish the goods and services of one source from the goods and services of another source

·          Not immoral, deceptive or otherwise unenforceable

The invention falls within a protected category in the patent statute, and is:

·         New;

·         Novel (adds functionality not present in prior inventions);

·         Non-Obvious (not likely to be discovered by people familiar with that category of inventions)

Copyrights

Trademarks

Patents

Who owns the property?

The author of the creative work

Main exception:

·      Author created the work while working as an employee, in which case the employer is the owner.

·         There’s a transfer of ownership by assignment, inheritance or other means

The first company to use the trademark in a given region

Main exceptions:

·         The company using the mark does so pursuant to a trademark license.

·         Federal registration trumps the first-to-use rule in certain instances

·         There’s a transfer of ownership by assignment, inheritance or other means

The inventor of the invention or idea

Main exception:

·         There’s a transfer of ownership by assignment, inheritance or other means

When does ownership begin?

The moment a creative work is fixed in a tangible medium (i.e. written onto paper, carved in wood, recorded on tape, etc.)

Note: Registration is not required to create a copyright, but is recommended for other reasons

The moment a company begins using the trademark in commerce.

Note: Registration is not required to create a trademark, but is recommended for other reasons

Upon successful completion of the registration process and issuance of the patent

Pseudo-Exception:

If the patent issues, the patent holder has certain rights that may date back to before the date the patent issued.

When does ownership end?

Ownership ends when:

·         The owner abandons all rights and places the work in the public domain

·         The copyright period expires, which is generally 120 years for companies, or 70 years after the author’s death

NOTE: Determining past expiration periods is complex and requires careful legal analysis

Ownership ends when:

·         The mark is no longer used

·         The owner fails to enforce its trademark rights against infringers (i.e. those using the mark unlawfully)

·         The owner fails to control the quality of its licensee’s use of the mark

Ownership ends when:

·         The owner abandons the patent, either expressly or by implication

·         The patent is revoked for invalidity or misuse

·         The patent period expires, which is currently 20 years for most patents

NOTE: Determining past expiration periods is complex and requires careful legal analysis

Copyrights

Trademarks

Patents

What symbols and notices can I use?

Before Registration Issues

·         Copyright 2003. Company Name, or

·         © 2003. Company Name.

After Registration Issues

·         Registered Copyright 2003. Company Name, or

·         Registered © 2003 Company Name. All Rights Reserved

Before Registration Issues

·         “TM” (for goods) or “SM” (for services), or

·         “XYZ” is the exclusive trademark of Company Name

After Registration Issues

·         “XYZ” is a registered trademark

·         ®

Before Registration Issues

·         Patent Pending

After Registration Issues

·         Patent No. ####

What are the owner’s rights?

The owner can stop:

Copying of

Modification of

Performance of

Display of

Distribution of

the copyrighted work

The owner can stop:

Using a similar trademark in a way that is likely to confuse consumers company)

The owner can stop:

The making of

Use of

Importation of

Sale of

The offering for sale of

the idea, invention or discovery

When do I need permission to use someone else’s intellectual property?

If any of these are unequivocally true, you don’t need permission:

·         The copied work fails to meet the legal requirements of a copyright (see above);

·         The work is abandoned or expired; or

·         Your use qualifies as a “fair use” (see below)

If any of these are unequivocally true, you don’t need permission:

·         Consumers are not likely to confuse you with the other trademark owner

·         You are using the other trademark for permitted comparative advertising

·         You are using the other mark for a parody

·         Your use qualifies as a “fair use”

You always need permission unless the patent is abandoned, invalid, revoked or expired