Intellectual Property FAQ’s

The form of protection depends on the work. Generally, you should seek a trademark for a name, symbol or other device that distinguishes your product. Apply for a patent if you have made an invention or discovery that is new, non-obvious and useful. If you have produced an original work of authorship in a tangible medium of expression, such as a book, computer program, visual artwork or motion picture, copyright is the appropriate protection. Information that you keep confidential for the health of your business, such as a formula or source code, may find protection as a trade secret.

Although the work must originate with you in order to be eligible for protection, it need not be pioneering to earn a copyright. The level of originality required for a copyright is met if the expression is new to author, regardless of whether someone else had a similar idea before. If you coincidentally write the same poem as someone halfway around the world, you both have the right to exclude others from copying your poems. If you copy someone else’s poem, however, you have no copyright protection.

Confidential information is likely to be protected as a trade secret if, by virtue of being secret, it is valuable to the business that owns it and if the owner takes reasonable measures to protect the secret under the circumstances.

A copyright protects only your expression — not the idea that underlies the expression. A biology textbook, therefore, may receive a lower degree of copyright protection than a work of fiction, because the expression in the textbook is constrained by the factual nature of scientific language. By providing only protection for expression and not for ideas, copyright law encourages authors to freely exchange and express information and ideas.

The duration of a patent (typically 20 years from the date the application was filed) is designed to allow the patent owner a limited monopoly on the invention or discovery. It also encourages competition and ingenuity. Patent protection is stronger than copyright protection (typically the author’s life plus 70 years), but it is shorter.

Collections of works, such as certain types of information databases, may be protected as compilations under a single copyright. The works must be arranged in such a way that they form an original composition as a whole. Collective works, such as magazines and encyclopedias, whose copyrighted parts make up a whole, are also copyrightable.

If the allegedly infringing work is substantially similar to yours and your work was accessible to others (through publication, for example), you may be able to show that the defendant copied your work. This is a fact-dependent issue. If the defendant independently produced the allegedly infringing work, however, without knowledge of either the existence or the content of your prior work, then the defendant may be able to show that it did not copy your work.

The US does not have courts that are exclusively dedicated to hearing intellectual property matters. Rather, intellectual property claims are usually brought in federal district court to be presided over by that court’s judge. While these judges are not charged with the specific knowledge of intellectual property matters, many have become intimately familiar with the principles and issues involved.

When a trade secret has been misappropriated and used by someone who is not entitled to it, you may wish to pursue legal action. Trade secret litigation can result in an injunction, damages or both. In order to win damages, you will need to show that the defendant’s use of the trade secret caused you harm or unfairly provided the defendant with financial advantages.

In addition to a label, logo, or other identifying symbol, a product may come to be known by its distinctive packaging — for example, the yellow packaging of Kodak film. Similarly, a service may become known by its distinctive decor or shape — for example, the orange-like structure of Orange Julius juice stands.Collectively, these types of identifying features are commonly termed “trade dress.” Because trade dress often serves the same function as a trademark or service mark — the identification of goods and services in the marketplace — trade dress can be protected under the federal trademark laws and in some cases registered as a trademark or service mark with the U.S. Patent and Trademark Office (USPTO).

Consumers often make their purchasing choices on the basis of recognizable trademarks.  For this reason, the main thrust of trademark law is to make sure that trademarks don’t overlap in a manner that causes customers to become confused about the source of a product. If two similar trademarks are being used by companies that provide different products or services, there may not be a trademark conflict. This is especially true if the two businesses serve only local markets and are hundreds of miles apart.However, in the case of trademarks that have become famous — for example, McDonald’s — the courts are willing to grant broader protection and prohibit almost all use of the trademark (or anything close to it) by anyone other than the famous mark’s owner.

Contact an Experienced Intellectual Property Attorney

We are experienced Sacramento Intellectual Property Law Attorneys. We have helped many individuals and companies with their intellectual property law issues including licensing, trademarks, copyrights and intellectual property contracts.  Our intellectual property law attorneys can help you protect your most important assets and give you the great legal advice and strategy needed to get you the results you want.  Contact us today to schedule your complimentary attorney consultation by clicking HERE or by calling 916-999-1376. We look forward to helping you with all of your Sacramento intellectual property law needs.