Madison - St. Clair Record

Sunday, January 26, 2020

How to protect your product, trade name or book

By Don Weber | Jun 17, 2007

The Founding Fathers knew that this country could only become great by protecting the individual entrepreneur and his commercial ideas.

That is why they wrote the Constitution to specifically recognize a third type of property. Many people only think about the two most common types of property but there are actually three. Everyone knows that real property (like land and homes) and personal property (like money and furniture) are two forms of property.

But there is a third very important type of property-it's called "Intellectual Property." Intellectual property consists of patents, trademarks and copyrights.

If you don't think intellectual property is important, just ask Thomas Edison, Alexander Graham Bell, Coca-Cola®, McDonald's®, Mark Twain or The Beatles. They all had patents, trademarks or copyrights issued in their name. Congress and the United States Supreme Court have both expanded and limited the scope of protection afforded under all three types of intellectual property over the last 200 years.

Patents protect inventors by granting a 17-year (before the Patent Cooperation Treaty) or 20-year monopoly to any inventor who creates a new, novel and non-obvious invention.

The test for "invention," rather than an obvious improvement, is referred to in the law as "a flash of genius." If you had one you are an inventor entitled to patent protection; if you didn't, you are just an average guy who improved something that someone with "ordinary skill in the art" could have done.

An invention can be something revolutionary like the internal combustion engine or the transistor or something seemingly ordinary like grooves on paper clips to make them hold the paper better.

Recently the United States Supreme Court restricted what can be patented and tightened the definition of "new, novel and non-obvious" in the case of KSR International v. Teleflex.

Patent claims, found at the end of a patent, determine the scope of an inventor's property. Patent claims serve the same function as the legal description of your home's property line.

Trademarks and Servicemarks protect your name and allow you to distinctly identify your product or services. Ford Motor Company is the only company that can call their cars "Ford®." The Wal-Mart Corporation is the only company that can sell consumer items in stores called "Wal-Mart®." Both of these registered trademarks are valuable assets of the corporation.

The symbol "TM" is a common law trademark. Anyone can adopt a common law trademark to distinctly identify the origin of the goods they sell by using the superscripted "TM" after the name. A common law trademark protects the name that identifies the goods-but only in the geographic area where the trademark is in use.

A common law trademark (or servicemark for service industries like insurance companies) can be registered with the United States Trademark Office. When it is registered, the symbol ® is used to identify and protect the mark. Once registered, trademarks are valid throughout the United States except in places where someone else had been using the same name before the trademark owner. That's why you can find a Burger King in Mattoon, Ill. that isn't associated with corporate Burger King®.

Trademarks can be renewed as long as they are being used in interstate commerce. You can add either trademark symbol to your work in Microsoft Word by clicking on "insert," then "symbols," then "special characters."

Copyrights protect written, drawn or recorded works of art. Books, newspapers, paintings, records, movies and some computer programs are examples of copyrighted material. A copyright is good for the life of the author plus 50 years. That's why the poems of Edgar Allen Poe and the plays of Shakespeare can be reproduced but most movies shown on television cannot be legally copied. A common law copyright notice consists of the copyright symbol © followed by the author's name and year of creation.

Patents and trademarks can be obtained through the United States Patent and Trademark Office located in Arlington, Va. Copyrights can be registered with the Copyright Office located in the Library of Congress in Washington, D.C. A good source for learning more about patents and trademarks is the official United States Patent and Trademark Office (USPTO) web site:

Filing a patent or trademark requires specialized knowledge and training. Lawyers must have an undergraduate engineering degree and pass a difficult day long test to become registered patent attorneys to be able to practice before the USPTO. A list of registered patent attorneys is available at the USPTO web site.

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Ford Motor Company