Frequently Asked Intellectual Property Questions:
What is Intellectual Property?
WHAT IS A TRADEMARK?
WHAT IS THE DIFFERENCE BETWEEN A TRADEMARK, A COPYRIGHT
AND A PATENT?
WHAT IS A SERVICE MARK?
WHAT IS A GENERIC TERM?
WHAT DO THE SYMBOLS ®, TM, AND SM
MEAN
WHAT IS THE DIFFERENCE BETWEEN A TRADE NAME AND A TRADEMARK?
WHAT ARE THE DIFFERENT TYPES OF TRADEMARKS?
WHERE CAN I LEARN MORE ABOUT INTELLECTUAL PROPERTY?
What is Intellectual Property?
Intellectual property refers to creations of the mind:
inventions, literary and artistic works, and symbols,
names, images, and designs used in commerce.
Intellectual property is divided into two categories:
Industrial property, which includes inventions (patents),
trademarks, industrial designs, and geographic indications
of source; and Copyright, which includes literary and
artistic works such as novels, poems and plays, films,
musical works, artistic works such as drawings, paintings,
photographs and sculptures, and architectural designs.
Rights related to copyright include those of performing
artists in their performances, producers of phonograms
in their recordings, and those of broadcasters in their
radio and television programs. (From WIPO, World Intellectual
Property Organization)
WHAT IS A TRADEMARK?
A trademark is any word (Poison), name (Giorgio Armani),
symbol or device (the Pillsbury Doughboy), slogan (Got
Milk?), package design (Coca-Cola bottle) or combination
of these that serves to identify and distinguishes
a specific product from others in the market place
or in trade. Even a sound (NBC chimes) color combination,
smell or hologram can be a trademark under some circumstances.
The term trademark is often used interchangeably to
identify a trademark or service mark.
WHAT IS THE DIFFERENCE BETWEEN A TRADEMARK, A COPYRIGHT
AND A PATENT?
They all are generally described as intellectual property
or intangible property because they are property rights
that cannot be touched or felt like personal property
(car) or real property (land). However, the terms have
different meanings and define different things.
A Trademark (®,
™, SM) protects a word, phrase, symbol and/or design
used with a product or service
on the market. A trademark is often referred to as
a brand. Trademark rights may continue indefinitely,
as long as the mark is neither abandoned by the trademark
owner, nor loses its significance in the marketplace
as a trademark by becoming a generic term. For a full
definition please see FAQ Definition #1.
A Copyright (©)
protects the original way an idea is expressed, not
the idea itself. It includes
artistic, literary, dramatic or musical works presented
in a tangible medium such as a book, photograph or
movie. This protection is given to works to prevent
unauthorized copying. The general rule for a work created
on or after 1-1-78, is that the copyright lasts for
the author's lifetime plus 70 years after the author's
death, or 95 years after publication for a work made
for hire.
A Patent protects a new and useful idea, which includes
a process and/or machine. It is granted by the Federal
government, providing an inventor with exclusive rights
to make, use and sell a patented invention. Patents
have a fixed term, usually 17 to 20 years.
WHAT IS A SERVICE MARK?
A service mark (Harrods) is similar to a trademark,
but it is used in the sale or advertising of services
to identify and distinguish the services of one company
from those of others.
WHAT IS A GENERIC TERM?
A generic term
is a word or phrase that is or has come to be the
common term associated with or known
as a particular category of goods or services to which
it relates, thereby ceasing to function as an indicator
of origin. For example, “clock” is a generic term for
timepieces. Generic designations are not registrable
or protectable. A trademark may potentially become
generic if it becomes so widely known and used with
a particular category of goods or services as to designate
the category of goods or services. In such instances,
the "mark" will not be registrable and a
previous registration for such a "mark" may
be subject to cancellation by a third party. Examples
of marks that have become generic over time include
“escalator,” “linoleum,” “zipper” and “yo-yo.” This
loss of trademark status is sometimes referred to as
“genericide.” It should be noted that what is generic
in one country may not necessarily be generic in another,
for example, the designation ASPIRIN is generic in
the U.S. but is not in other countries.
WHAT
DO THE SYMBOLS ®,
TM, AND SM MEAN?
A ™ is usually used to indicate an unregistered trademark.
It is an informal notification that there is a public
claim as a trademark.
An SM represents an unregistered service mark. It
is also an informal notification that there is a public
claim as a service mark.
The ® (commonly pronounced R-in-a-circle or Circle-R)
is a warning notice to advice the public that the mark
is federally registered and their use provides legal
benefits. This notice can be used only with registered
marks. Use of a ® with any unregistered trademark
may result in claims of fraud. Several other countries
also use the ® symbol to indicate that a trademark
or service mark is registered in their respective systems.
WHAT IS THE DIFFERENCE BETWEEN A TRADE NAME AND A
TRADEMARK?
A trade name
is used to identify a company or a business and serves
as the name of the company or a business.
In contrast, a trademark or service mark is used to
identify the source of the products or services that
the company or business sells or provides. However,
a trade name can also function as a trademark or service
mark depending upon the context in which it is used.
If a trade name is used as more than just the company
name and informs consumers where a product or service
is coming from, then it is being used as a trademark
or service mark. For example, if the name is used as
a noun, ("You can get your traveler's checks from
American Express"), it is a trade name; if used
as an adjective, ("You can get your American Express
traveler's checks here"), it is a trademark.
WHERE CAN I LEARN MORE ABOUT INTELLECTUAL PROPERTY?
INTA (International Trademark Association WWW.INTA.ORG
WIPO (World Intellectual Property Organization) WWW.WIPO.ORG
WHAT
ARE THE DIFFERENT TYPES OF TRADEMARK?
2 TRADEMARKS
A trademark is any word (Poison), name (Giorgio Armani),
symbol or device (the Pillsbury Doughboy), slogan (Got
Milk?), package design (Coca-Cola bottle) or combination
of these that serves to identify and distinguishes
a specific product from others in the market place
or in trade. Even a sound (NBC chimes) color combination,
smell or hologram can be a trademark under some circumstances.
The term trademark is often used interchangeably to
identify a trademark or service mark.
3 Copyrights
A Copyright (©)
protects the original way an idea is expressed, not
the idea itself. It includes
artistic, literary, dramatic or musical works presented
in a tangible medium such as a book, photograph or
movie. This protection is given to works to prevent
unauthorized copying. The general rule for a work created
on or after 1-1-78, is that the copyright lasts for
the author's lifetime plus 70 years after the author's
death, or 95 years after publication for a work made
for hire.
4 Patents
A Patent protects a new and useful idea, which includes
a process and/or machine. It is granted by the Federal
government, providing an inventor with exclusive rights
to make, use and sell a patented invention. Patents
have a fixed term, usually 17 to 20 years.
5 what is protected by copyright.
Copyright Protection (from the U.S. Copyright Office.)
www.copyright.gov
What does copyright protect?
Copyright, a form of intellectual property law, protects
original works of authorship including literary,
dramatic, musical, and artistic works, such as poetry,
novels, movies, songs, computer software, and architecture.
Copyright does not protect facts, ideas, systems,
or methods of operation, although it may protect
the way these things are expressed
WHAT WORKS ARE PROTECTED?
Copyright protects "original works of authorship" that
are fixed in a tangible form of expression. The fixation
need not be directly perceptible so long as it may
be communicated with the aid of a machine or device.
Copyrightable works include the following categories:
1. literary works;
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
architectural works
WHAT IS NOT PROTECTED BY COPYRIGHT?
Several categories of material are generally not eligible
for federal copyright protection. These include among
others:
• Works that have not been fixed in a tangible form
of expression (for example, choreographic works that
have not been notated or recorded, or improvisational
speeches or performances that have not been written
or recorded)
• Titles, names, short phrases, and slogans; familiar
symbols or designs; mere variations of typographic
ornamentation, lettering, or coloring; mere listings
of ingredients or contents
• Ideas, procedures, methods, systems, processes,
concepts, principles, discoveries, or devices, as distinguished
from a description, explanation, or illustration
• Works consisting entirely of information that is
common property and containing no original authorship
(for example: standard calendars, height and weight
charts, tape measures and rulers, and lists or tables
taken from public documents or other common sources)
