Intellectual property rights fall into three categories: copyrights, trademarks and patents. Each is protected by federal statute while trademarks also are protected by state law.
Intellectual property rights are acquired by filing an application with the relevant federal or state agency and the issued certificate is normally received following regulatory examination for compliance.
Every business generates and uses intellectual property. As a business deals with its customers, it creates a reputation, and the distinctive name of its products or services can generate trademarks. The function of a trademark is to create an identity among consumers so they can distinguish the business’ services or products from those of similar businesses in the market.
Thus, trademarks easily can become important assets of a business. Conversely, in the generation and use of the trademarks, the inadvertent use of another business’s trademark, particularly that of a competitor, could leave a business open to trespass or infringement complaints.
To carry out the function of a business and to build its reputation, there must be communication with the marketplace. Written, visual and audio messages are created to promote a business’s products or services. The written word, the illustration and the visual or audio stream used in advertising is considered an artistic expression that falls within the domain of copyright.
These types of messages that are effective in the sale of products and services become valuable business assets that should be protected. Likewise, care must be taken to avoid the trespass of similar properties of other businesses that could expose a business to legal action and corrective action.
Finally, there is the product or service itself, which may possess some unusual structure or operation that is distinguished from similar products or services of others in the market. The U.S. patent statute provides protection – including ownership – for products and services that meet federal statutory criteria. Patent protection may prohibit competitors from providing identical products or services.
Patent, copyright and trademark rights are valuable assets to businesses, and their ownership brings an obligation to suppress infringement by others. Thus, it should be particularly important to a business’s owner that any product or service owned or controlled by the owner be protected.
H. Roy Berkenstock is a member of Wyatt, Tarrant & Combs’ Intellectual Property Protection & Litigation Service Team. This column is part of an occasional series on intellectual property issues for businesses and institutions.