Intellectual Property

Trade Secrets

Trademarks
Patents
Copyright


Why is this the hot topic of conversation in the business and legal world? The answer is quite simple. Intellectual property is worth enormous sums of money. More than ever, individuals and businesses want to protect the products of their expensive research and creative talents. What is the best, most effective way of protecting your idea? A wise man once said the only secrets are those which you don't share with anyone. While true, this advice is impractical if the goal is to use the idea to create a profit. Yet, secrets are the first line of the defense of intellectual property. What follows is not an extensive analysis of the law, but it can provide a general understanding of the subject.

Trade Secrets
Of course, a secret must usually be shared when a product is built. The idea can remain secret, however, to the general public and to others in the field. For example, a certain major soft drink company is rumored to have its secret formula kept in a vault, access to which is limited to three individuals. Those three individuals have, no doubt, signed agreements with the company not to disclose the contents of the formula to anyone. This soft drink company has a trade secret, and it is actively limiting the secret to a select group of people. You can be assured that if one of those people decided to share the secret with a competitor, the company would be in court immediately to obtain an injunction. Courts are good about protecting trade secrets if they are truly secret and if one has taken steps to assure that secrecy has been maintained. Just as the Lord helps those who help themselves, courts reward the vigilant.

Trademarks
Far from secret, trademarks are touting your product to the world. Buy a Ford, rent from Avis, eat at Joe's. Companies work hard to make a quality product; they name their product so that consumers can buy it again and again from the same source. The law of trademarks can protect the name of the company, the name of its product, the logo that appears on the product, the slogans used to sell the product and in some cases the look of the product and its packaging. This "look" is called tradedress. The value of a strong trademark is self evident. It is also obvious that Ford would take a dim view of another automobile manufacturer which called itself "Foord". Consumers might be confused and the real Ford Motor Company would lose business to an imposter trading on Ford's coattails.

There are federal and state laws governing trademarks. The ones with the most teeth, however, are all federal. One can have a trademark without federal registration, but if a trademark is important to you, register it. Federal courts are most cooperative in supporting the holders of registered trademarks. Rights in trademarks are established by registration and use. If the owner of a trademark does not use it, he can lose it. Trademarks also require maintenance. Some may remember when Senator Sam Ervin asked a staffer to "xerox" a document for him during the Watergate hearings. Xerox promptly sent the Senator a letter reminding him that Xerox was a trademark which was not to be confused with the service provided under the trademark, that is, photocopying. The trademark owner must protect his trademark. Failure to protect it can lead the to the trademark becoming generic. Cellophane and aspirin, for example, were at one time trademarks.

Rights in tradedress are established by use. When the look of a product or its packaging is identified in the minds of consumers as coming from a particular source, the tradedress acquires protection. Think, for example, of a bottle of Coca Cola. You would know it was a Coke even if you could not see the label or the contents of the bottle. When a nonfunctional feature of a product or its packaging comes to be associated with a particular source or company, it can be protected. The unique quality of trademark protection is that it can last forever. It just requires good maintenance.


Patents
Patents are creatures of federal law. They are discussed in the United States Constitution. The only way one can acquire a patent is to apply for it. Patents provide the patent holder with the exclusive right to exclude others from making, using and selling the invention described in the patent for a finite number of years. Unlike trade secrets, patents tell all about the thing which is patented so that anyone can copy it. Of course, if the copier does not obtain the holder's permission, the holder may sue for injunctive relief and damages. Upon expiration of the patent, anyone can make the item patented. Very technical rules prescribe just what can qualify for patent protection. Because patents are often thought of as the most technical of the branches of law relating to intellectual property, enforcing patents in federal court can be very time consuming and expensive. Nonetheless, the ability to foreclose competition from one's competitors for about 20 years is sufficient incentive for most inventors to invest the time and the money.

Copyright
Copyright law does not protect ideas. It protects only the written embodiment of ideas. This means, for example, that had such protection existed in Shakespeare's time, he could not have prevented any other playwright from writing a story about star crossed young lovers who both die in the end. However, he would have been able to prevent others from using his words, "Romeo, Romeo, wherefore art thou?" Copyright protection is not limited to words; it applies to other written embodiments such as designs, drawings, photographs and patterns. Copyright protection lasts for the life of the author plus 50 years. One need not register the material created to have copyright protection, but registration is required to litigate in federal court.

 

 

 

 

 

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