Intellectual Property Law
What is Intellectual Property Law?
Intellectual property law deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works. Just as the law protects ownership of personal property and real estate, so too does it protect the exclusive control of intangible assets. The purpose of these laws is to give an incentive for people to develop creative works that benefit society, by ensuring they can profit from their works without fear of misappropriation by others.
Article I, Section 8 of the U.S. Constitution gives Congress express authority to grant authors and inventors exclusive rights to their creations. Section 8 also gives Congress the power to regulate interstate and foreign commerce, providing further support for its right to legislate in this area. Intellectual property laws passed by Congress are administered by two government agencies, the U.S. Patent and Trademark Office, and the U.S. Copyright Office.
Patents give inventors the right to use their product in the marketplace, or to profit by transferring that right to someone else. Depending on the type of invention, patent rights are valid for up to 20 years. Qualifying items include new machines, technological improvements, and manufactured goods, including the “look” of a product. Patent protection will be denied if an invention is found to be obvious in design, not useful, or morally offensive.
Trademarks protect symbols, names, and slogans used to identify goods and services. The purpose is to avoid confusion, deter misleading advertising, and help consumers distinguish one brand from another. Since the goal is to distinguish, generic or purely descriptive marks may not qualify. Rights can potentially last forever, and they are obtained by simply using a mark. While not required, owners can register their marks for additional protection.
Copyrights apply to writings, music, motion pictures, architecture, and other original intellectual and artistic expressions. Protection is not available for theories or ideas, or anything that has not been captured in a fixed medium. The act of creation itself produces a copyright and unpublished works are still protected. Use of a copyright symbol and date is common, but not mandatory. Most copyrights are valid for the creator’s lifetime, plus 70 years.
Protecting Against Infringement
Infringement refers to the unauthorized use of intellectual property. To protect against infringement, owners should take steps to put the world on notice that their rights exist. Providing notice helps deter infringement by making the owner’s rights more visible to those who might inadvertently violate them. It also triggers additional legal benefits, and puts the owner in a better position to prosecute an infringement in court, if that becomes necessary.
Inventors can give notice of their rights by marking their product with the patent number assigned to it by the Patent and Trademark Office. The label “patent pending” can also be used to discourage others from copying the design before the patent is awarded. Notice of trademarks and copyrights is given by placing the appropriate symbol (™, ©, etc.) on the material, and then registering the mark or copyright, so it can be added to the government’s database.
If infringement does occur, rights to intellectual property can be enforced in federal court. Before filing a lawsuit, however, owners will want to consult with an attorney and carefully consider whether litigation is in their best interests. Infringement cases are expensive to prosecute, and there is always a risk that the owner’s rights, once held up to the scrutiny of a court proceeding, will be revealed as invalid or less extensive than the owner believed.
In the event an owner of intellectual property does sue, and the lawsuit is successful, a number of remedies will be available. The court can order an injunction, meaning the infringer must stop what it is doing. Substantial money damages may also be available. In addition, once the owner’s rights are established in court, the infringer may agree to a license agreement. This allows use of the intellectual property to continue, with payments going to the owner.
Rights to intellectual property can be incredibly lucrative, making individuals huge sums of money. Infringement claims have also bankrupted large, profitable companies without warning. With so much at stake, anyone dealing with issues in this area of the law should seek the advice of an attorney. Firms specializing in intellectual property law are available to help owners who are looking to establish, profit from, or defend their rights.
Get Help from an IP Attorney
If you have created or obtained the rights to something unique, an intellectual property attorney can help you protect your interests. Conversely, if someone has accused you of infringement, you want legal counsel to help you fight back. Contact an attorney today to learn more.
Know your Rights!
- Is it Illegal to Buy Counterfeit or Knockoff Designer Goods?
To answer the question, it is first important to distinguish between a counterfeit and a knockoff product.
- Protecting Trade Secrets: How to Draft a Nondisclosure Agreement
Protecting your competitive advantage – your trade secrets – can be critical to growing your business. And, one of the best ways to do that is through the use of the nondisclosure agreement.
- What is a Patent Troll?
Many have read about legal battles fought between large technology companies and entities referred to as “patent trolls” and wondered, “what is a patent troll?” Obviously, it has something to do with patent laws and infringing on someone's patent rights, but what does it really mean? Who does it apply to? Is anyone who asserts a patent infringement a “troll,” or just certain people and entities? Where did the term come from?
- What is Plagiarism?
Plagiarism is usually defined as the "wrongful appropriation" of another's words, thoughts, ideas, or expressions and the misrepresentation that they are the representer's original work. Of course, with a definition that broad and vague, most any sort of researched work might be considered plagiarized. However, plagiarism is considered academic dishonesty, but is not a crime, per se.
Articles About Intellectual Property
- Choosing a Trademark That Will Last Over TimeThe purpose of a trademark is to differentiate and protect a company’s goods or services in the marketplace. A trademark also represents an intangible asset in the form of consumer goodwill that has been assigned to the company through its history of providing quality goods and/or services.
- Intellectual Property: 3 Legal Tools to Help You Protect Your Business IdeaIf the success of your small business rests with your intellectual property, then you should be very interested in how you can protect it. Filing for a patent can be costly and time-consuming; you may not be able to wait that long, especially if you need to share your idea with others for it to come to fruition.
- When Is It Legal to Download Music, Movies, or Software Via Torrents on the Internet?Since the rise of the Internet, the illegal sharing of music, movies, and software have been an ongoing concern. Still, not every peer-to-peer network for sharing various forms of media is illegal, and some companies have even found it desirable to begin distributing materials in this fashion. So, when is it legal to download music, movies, or software via torrents on the Internet?
- Intellectual Property Law: Understanding the BasicsIntellectual property law is an intimidating subject for many business owners. Sure, you’ve heard horror stories about intellectual property being stolen… but that would never happen to you, right? Actually, if you’re in business long enough, there’s a very good chance that your ideas will be stolen. And if you don’t protect yourself, the consequences could be catastrophic.
- Cottage Food Operations under the California Homemade Food ActThe California Homemade Food Act which went into effect January 1, 2013 has created a new category of food production called a cottage food operation. To qualify for a permit, aspiring food manufacturers need to attend a food safety class, pass an exam, learn how to label foods, pay a fee and submit to inspections. They can’t smoke or keep pets in their kitchens, certain hazardous foods are prohibited, and there is also a revenue limit.
- Trademark Law and Copyright Law - Their Use by CelebritiesBecause of the value of even the simplest phrase, celebrities today are utilizing copyright and trademark law to protect their intellectual rights in instances rarely before noticed. It is Copyright and Trademark Law which requires their lawyers to send cease and desist letters to unsuspecting entrepreneurs. A balance needs to be restored so celebrities can proceed against large scale pirates even if they don’t aggressively seek to protect their intellectual property rights in every case.
- Satire and Parody, Publishing Law in California and EnglandIn the aftermath of the horrific and deadly attack on the offices of Charlie Hebdo in Paris on January 7, 2015, we examine why parody and satire are cherished forms of free speech and how they are protected by U.S. and U.K. law. When an aggrieved target of satire or parody sues for defamation, or a copyright holder sues when their work is contained in a mashup, can parody, satire, or fair use be utilized as a defense by an attorney? In the U.K., it will help if the parody is funny.
- Publicity Rights and The Right of Privacy, California Entertainment LawThe right of publicity is the right of every human being to control the commercial use of his or her identity. When that right is infringed, the individual’s publicity rights have been violated. The right of privacy is the right not have your name or likeness appropriated by another without your permission, your privacy intruded, your private information to be made public, and to not be placed in a false light. In California, damages can be pursued by an attorney for these infringements.
- How An Experienced Lawyer Can Protect A Comic Book Creator And Writer in CaliforniaThe client who creates a comic book character and goes on to develop a character that can be licensed to third-party publishers, to the film and television industry and to the interactive game industry, isn’t simply creating content. They’re creating intellectual property the ownership of which needs to be carefully protected so all the revenue streams from that content can be potentially licensed and controlled by the comic book creator and his or her company.
- Understanding Trademark InfringementTrademark infringement can be a serious issue, especially if you run a small business that depends on various distribution channels. Do you understand how the laws could affect you?
- All Intellectual Property Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Intellectual Property including: copyright, domain names, licensing law, patents, trade secrets and trademark.
Intellectual Property Law - US
- ABA - Intellectual Property Law Section
- American Intellectual Property Law Association (AIPLA)
The American Intellectual Property Law Association (AIPLA) is a 16,000 member, national bar association constituted primarily of intellectual property lawyers in private & corporate practice, in government service, and in the academic community.
- Intellectual Property Law Server
- Office of the Administrator for External Affairs (EA) - IP Enforcement and Policy
The USPTO leads efforts to develop and strengthen both domestic and international property protection and advises the Secretary of Commerce, the President of the United States, and the Administration on patent, trademark, copyright, and copyright protection.
- Office of the United States Trade Representative (USTR)
USTR's Office of Intellectual Property and Innovation (IPN) uses a wide range of bilateral and multilateral trade tools to promote strong intellectual property laws and effective enforcement worldwide, reflecting the importance of intellectual property and innovation to the future growth of the U.S. economy.
- United States Patent and Trademark Office (USPTO)
- USDOJ - Intellectual Property Task Force