Intellectual property (IP) is a blanket term that describes a number of distinct types of intangible assets—creations of the mind—to which one can claim exclusive rights. Since there are several forms of intellectual property, it is easy to confuse them. However, the main forms of IP: patents, copyrights, trademarks and trade secrets have very different legal implications.
If you are seeking an intellectual property expert to provide litigation support, make sure that they have expertise in the specific form of intellectual property that’s applicable to your case.
Here are some key differences between the four primary forms of intellectual property:
A patent is a set of exclusive rights that a sovereign state grants an inventor or their assignee in exchange for public disclosure of their inventions. Patents are issued for certain lengths of time that depend on national laws. To receive a patent, an inventor needs to file a claim that meets the minimum requirements of patentability. These requirements often include novelty (originality) and non-obviousness. Once a patent is granted, it prevents others from using, selling, manufacturing or distributing the invention without express permission.
A copyright grants the right to copy a work of intellectual property. It also assigns credit for the IP. Though copyrights were originally conceived as a way for the government to restrict printing, they have since become a means of protecting authors’ rights to profit from their creative endeavors. In addition to written works, copyrights can be assigned to other forms of IP including songs, films and works of art. Copyrights are issued for a finite amount of time, usually between 50 and 100 years from the time of the author’s death.
Some of the exclusive rights that a copyright affords an author include the right to display the work publicly, transmit or display the work by radio or video, to produce and sell copies of the work and create derivative works for the original.
A trademark is a distinctive sign or symbol used by a business organization, individual or other established legal entity that is used to differentiate that entity’s products and services from others. Trademarks are typically a word, phrase, design or symbol. Trademarks therefore serve as a badge of origin for a brand in order to communicate that origin to consumers.
There are two symbols associated with U.S. trademarks. Whereas ™ (the trademark symbol) can be used with any common law usage of the mark, ® denotes a registered trademark. The registered trademark symbol can only be used when the trademark has been registered with the U.S. Patent and Trademark Office.
A trade secret is a design, formula, process or other piece of IP that is not known to the general public, which provides an economic advantage over competitors. Businesses can take steps to protect their trade secrets including requiring employees to sign nondisclosure agreements or contracts with non-compete clauses.
In the U.S., trade secrets are not nearly protected to the same degree as patents, trademarks or copyrights. However, businesses might opt not to initially patent an invention or process since patents require disclosure.
Intellectual property expert witnesses are available to provide additional support and help lawyers navigate the complex legal landscape of IP rights.