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Trademark Confusion

The Confusion over Trademarks

Many people don’t seem to understand the differences between trademarks, copyrights and patents.

It’s an interesting world out there, full of signs, slogans, logos, books, artistic work, and too many other things to mention in a short article. But the main thing to know is that there is a distinct difference in what a trademark is, what copyright means, and what one does with a patent.

Trademark rights act to protect a word or logo as being “the” source for goods/services. E.g. Nike. The instant anyone says that word, we all think of running shoes and well, Michael Jordan. This is the true definition of a trademark. Now here is the interesting thing. You don’t need to file for trademark registration to have common-law trademark rights, but let’s put it this way — if you don’t file and someone infringes on those rights, you’d have a tough time enforcing them. So, it’s best to be safe and not sorry, and file with the US Patent and Trademark Office.

Other things that registering will do for you is provide the “presumption” you’re the trademark’s rightful owner and gives you statutory damages against someone using your mark in bad faith. Once your “mark” is registered, you need to remember to always keep protecting it to keep your trademark rights.

The Copyright Conundrum

The easiest way to explain copyright is to say that if you create something and it falls under the definition of being a creative work, it’s up to you who makes copies and how many copies. Of course, there are exceptions, and knowing what those exceptions are happens to be important.

At this point, it’s usually smart to contact a lawyer well versed in this area, as this type of law has the potential to be extremely complex. By the way, you may sell or even license this copyright, or if you have done work for someone else, then they buy this right in advance.

The major difficulty is defining what constitutes a creative work. Legally, it has to exist in some tangible form — on paper, a disk, or even written in stone. However, what it’s written on isn’t what makes it creative. To be creative, it can’t be just straight factual data; that is where an easily understandable explanation usually ends, as there honestly is even an element of creativity to coding in computer language.

Anything you do that is classified as creative writing, creative editing, etc., is copyrighted. So the distinction is this: the facts can’t be copyrighted, but a very clever and creative organization of those facts may be. This is referred to as compilation copyright. In short, this area may make your head spin, so speak to a copyright lawyer who has his or her head on straight and can outline what you need to know.

Copyright is Alive and Well

Yes, there is indeed such a thing as copyright infringement, meaning people should not be using other people’s written works without express permission.

In this day and age, with things changing at the speed of light, ideas being transmitted around the world with a click of a mouse and books being published online and in print, it becomes almost second nature for people to think it’s OK to use someone else’s writing and call it their own. The same seems to apply to paperbacks, hard copy books, and other written materials.

Copyright law has its origins from earlier times when authors, individuals working in the printing and publishing fields, and journalists needed to ensure their work was protected from unauthorized copying. Legislation to accomplish this protection was first introduced in the 18th century in England. The first attempt at embodying a copyright law gave authors, etc., the right to keep ownership of original works. If anyone wanted to copy those original documents, they had to get permission.

You might see this is where the term copyright came from — because the law recognized a writers “right” to not be copied. Over time, this area of the law expanded and was applied to musicians, photographers, all original drawings (engineering, maps etc.), and even scientific formulas. These days the laws cover even more areas and are far stricter than the original ones.

Imagine if you lived in a time where you could freely take and copy anyone’s works or documents, change them, and sell them without the consent of the person who first wrote the material. You’d be making money for the fraud of selling someone else’s work as yours, but the original writer would not be getting any profits. Again, all the more reason for copyright being in place, not only to protect an author’s original works, but to protect their potential source of income.

In 1886, there was an international agreement on the nature and extent of copyright law. The same general agreement, except for it being reaffirmed in 1952, has remained in place (with some legal tweaking) until the 21st century. We’re not so different these days that we don’t see the value in protecting original works of writing, etc.

Today’s copyright laws are very clear on their definition of rights and because they are so clear, there are far fewer legal disputes over its infringement. What may vary in this field are how the law applies to copyright renewals, how long the rights apply, and the question of eligibility for a copyright. This isn’t to say that copyright cannot be transferred because it can, so long as the original author gives his or her consent.

Property Rights Definition

When you think about intellectual property, “think” is the most descriptive term that suits what it means.

That’s right, when you think something and it is created, it is referred to as intellectual property — a creation of the mind. This would apply to inventions, images, symbols, designs, artistic works, literary works and even names used commercially; say for instance Nike Air Jordan shoes. What kid doesn’t want a pair of those?

To put this another way, think about protecting those conceptions of the mind and you are on the right track if you realize that those mind creations are actually property. Thus intellectual property rights are granted for handiworks of the mind. Those creations “belong” to someone and should not be infringed upon. Aside from the fact that the ideas and works should not be stolen, there is an underlying principle that recognizes people who create ought to be rewarded for their innovations, often financially, so they keep on creating.

Without confusing the issue too much, there are two types of intellectual property: copyright and industrial property. Industrial property lays claim to patents, industrial designs and trademarks. Trademarks are used to differentiate one product from another and that usually means using things like sounds, smells, signs, shapes, symbols, colors and brands.

Patents give the inventor a window of opportunity to stop others from creating, using or selling the inventions or creations without being authorized. On the other side of the coin, copyright applies to artwork like sketches, photos, sculptures and paintings, and literary works such as films, plays, books and poems. There are other areas covered as well, but for a full discussion of this area of law, it’s best to speak with a Sacramento business lawyer who has expertise in this area, as it’s a complex domain and sometimes understanding what is protected and why is a bit difficult to grasp.

Copyrights give authors the exclusive right to their works, but for a defined period of time. Again, discuss this with a Sacramento business lawyer who will also explain that copyrights must be renewed if the original creator wants the chance to promote their creation and derive financial benefit from it.

If you feel that your intellectual property rights have been violated, discuss your potential case with a Sacramento business lawyer to determine if you indeed have a case. Intellectual property rights cases tend to be complex and lengthy, but that is not to say they are cases that can’t be won.