Plain English: Intellectual Property, Trademark, and Copyright

I often get confused looks when I inform business owners that I am an intellectual property attorney, but that I do not do patent applications. There is a very common misconception, even amongst attorneys, that “intellectual property” is synonymous with patents; and this is simply incorrect. “Intellectual property” (“ip” in legal lingo) describes the category of law, while “patent law” is one of four types of intellectual property law.

Intellectual property is made of four sub-categories of law: trademarks, copyrights, trade secrets, and patents. Below, I have provided a brief explanation and example of what trademarks and copyrights are, and a quick distinction of trade secrets and patents:

Trademark: a unique logo that serves to protect a company’s brand and to also protect consumers by allowing them to rest assured that a product with a recognizable logo attached to it was actually made by the company associated to the logo. Examples: When you buy a shoe with a Nike Swoosh logo on it, you know that it was produced by Nike, and when you buy a Louis Vuitton bag with their signature “LV” logo patterned onto a brown background, you know that you are getting an actual Loius Vuitton bag.

Copyright: Copyrights serve to protect artists and the art they create. Whether it’s music, a magazine article, or a painting, once an artist has created something legally “unique” in the United States, the artist automatically has copyright protection in their art against anyone who “substantially” copies their artistic work. Examples: Ray Charles created the song “I Got a Woman” in the 1950’s, and in the United States, has copyright protection in that song for his life, plus 70 years after he dies. How then, did Kanye West make the song “Gold Digger” in 2004, which sampled parts of Ray’s song “I Got a Woman”? Just because Ray Charles had copyright protection when Kanye made his song, doesn’t mean Kanye cannot use the song, but it does mean that Kanye could only use Ray’s song subject to Ray’s terms and conditions; a license.

Trade Secrets: Trade secrets are the gems to a company’s success in creating a profitable good or service, and are secrets that must be well kept by the company. As long as the company puts forth a sufficient effort in keeping the secret, anyone who uses illegal means to discover the secret may be legally liable. Reverse engineering is a legitimate way to discover a trade secret. A most notable example of a trade secret is the formula for Coca-Cola, which only a handful of people in the company know and have access to.

Patents: Patents are protections for persons or companies who have created a useful invention that advances some type of technology. Note that this is different from copyright where the protection is for art. Patents essentially give the person who files a successful patent a 20 year monopoly on the technology they have patented, meaning they have exclusive rights over how much they want to sell or license the technology and in deciding who is allowed to produce the technology.

– ck

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