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 The act of creation itself produces a copyright and unpublished works are still protected.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
- Is the Selling of Pictures of Sculptures or Other Art Prohibited?The art world is full of fascinating pictures, sculptures, paintings and other works that capture various emotions or states of being. All too often, fans of these creations do not understand that they are not permitted to take copies or reproduce the items without permission from the creator. Sometimes, an individual is allowed to do so for private use only.
- Copyright Registration – A Prerequisite for Infringement LitigationRegistering copyrights is important in order to provide business owners and authors significant benefits, including statutory damages and reimbursement for attorneys’ fees, in the event someone infringes on their copyrights.
- The Defend Trade Secrets Act: A Powerful New Tool For Business OwnersPresident Obama recently signed into law the Defend Trade Secrets Act (“DTSA”) of 2016, which gives holders of trade secrets a new and powerful option to bring trade secret lawsuits under federal law.
- Trademark Maintenance: How Do I Maintain a Registration?A Trademark is a Living Asset. If you have a registered trademark with the United States Patent and Trademark Office (“USPTO”), you have taken a very important step in protecting your businesses’ brand. However, what happens after you receive that registration? Do you own your trademark forever? Not exactly. Once you have obtained a federal trademark registration, you must take certain steps to maintain the registration or you risk having it canceled by the USPTO.
- Florida’s Uniform Trade Secrets Act: What Does It Mean for Your Business?Having an employee sign a non-compete agreement and/or a nondisclosure or confidentiality agreement is one way to protect your company’s trade secrets and confidential and proprietary business information. However, often times companies may not have any agreements with their employees and a business mistakenly believes it has no way of protecting against the unauthorized disclosure of trade secrets or sensitive information.
- How to Tell If You Need a Florida Business AttorneyAccording to the Small Business Administration, there are roughly 600,000 new businesses started in the U.S. every year.
- Remedies for CybersquattingHave you ever noticed that when a person or business name becomes popular or well-known, there’s often an unrelated third party prepared to park or register website domains in the name of that person or business? In many such cases, the third party’s objective involves making an easy profit by holding the domains “hostage” until the rightful owner of the name or mark is willing to pay a premium for the domains. This is called cybersquatting and it is illegal.
- Protecting Trade Secrets Using Employment AgreementsMost California business owners know that a provision in an employment contract which purports to prevent a former employee from competing with the employer’s business is unenforceable in California. Under California law, there is a strong and clear policy favoring the free and unfettered rights of workers to find work where they can, using all their skills and experience to command the best wages they can find.
- Trademark ProtectionMost company’s trademarks are extremely valuable assets and represent a significant percentage of the company’s worth. Brand recognition creates customer goodwill and promotes customer satisfaction, which leads to increased sales. Because of this, it is critical to maintain protection of these intangible assets.
- FINRA Investigations Under Rule 8210It is every registered person’s nightmare. You receive a letter from a FINRA office notifying you that you are the subject of a FINRA investigation.
- 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