what is the difference between a patent, a trademark and a copyright?

Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.  I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law.

First, what do I mean by the term “intellectual property”?  According to Tech Terms Online:

“Intellectual property refers to the ownership of intangible and non-physical goods.  …  Since intellectual property is intangible, it is more difficult to protect than other types of property.”

While this is a fairly reasonable definition, I prefer to use a more shorthand version: “Intellectual property is something that is created by the mind.”  Typically, we think of ideas as being created by the mind – but intellectual property does not protect bare ideas: rather, it is the expression or symbolic power/recognizability of the ideas that are protected. 

Thus, it is the design of the rocket that is patented, not the idea of a rocket.  It is the painting of the lake that is copyrighted, not the idea of a lake.  And it is the consumer recognizable logo that is trademarked, not the idea of a logo.  Intellectual property protects how we express and identify ideas in concrete ways – not the idea itself.

In particular:

• Patents: protect functional expressions of an idea – not the idea itself.  A machines, method/process, manufacture, compositions of matter, and improvements of any of these items can be patented.  Thus, I can patent a design for the nozzle on a rocket, or the method of making the rocket, or the method of making the rocket fuel, or the metal in which the rocket fuel is stored, or a new way of transporting the rocket fuel to the rocket.  But I cannot patent the broad “idea” of a rocket.
   
• Copyrights: protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e., paintings, photographs, sculpture, writings, software, etc.   A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of the idea of a secret agent (i.e., a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).  
   
• Trademarks: protect any symbol that indicates the source or origin of the goods or services to which it is affixed.  While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate.  The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing. 

While each category is distinct, a product (or components/aspects of a product) may fall into one or more of the categories.  For example, software can be protected by both patents and copyrights.  The copyright would protect the artistic expression of the idea – i.e., the code itself – while the patent would protect the functional expression of the idea – e.g., using a single click to purchase a book online.  Likewise, it is likely that the software company will use a trademark to indicate who made the software. 

An additional example would be a logo for a company.  The logo may serve as a trademark indicating that all products affixed with the logo are from the same source.  The creative and artistic aspects of the logo may also be protected by a copyright. 

The complexity of intellectual property protection increases exponentially during the life cycle of innovation, research, product development, etc.  A single product may contain, for example, more than one patentable feature, one or more creative or artistic expressions that may be protected by copyright, and one or more trademarks indicating the source of the product.  All of these points of intellectual property provide an opportunity for protection and/or an opportunity for infringement of a third party’s intellectual property.

So – while it is simple and straightforward (well, mostly) to differentiate between the different aspects of intellectual property, it is a more difficult process to implement a strategic path forward and determine which type(s) of intellectual property protection are appropriate/desirable.

I am sure that PHOSITA readers will quibble, argue and debate me to death on the above-referenced “short hand” guides to intellectual property.  Drop your thoughts/short hand (keep it clean) into the comments.

(Photograph by Halima Ahkdar, used under Creative Commons license.)

Posted by Douglas Sorocco, January 11, 2009 at 10:03 pm
Permalink: what is the difference between a patent, a trademark and a copyright?
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Scrabble v. Scrabulous

Check out this statement from an article that I read today:   

Now, as if you needed more proof that we live in a time in which stuffy lawyers don’t dig the digital age, take a look at this: It looks like toy-makers Hasbro and Mattel have sent their legal goons to Facebook and demanded that it remove the immensely popular ‘Scrabulous’ from its site.

Woah, woah, woah.  Come on, that wasn’t very nice.  Let me explain.  Hasbro and Mattel have probably asked their Intellectual Property attorneys to look into this matter.  Intellectual property attorneys dig the digital age.  In fact, we are advocates for the digital age.  That is why we have chosen to devote our working lives trying to protect the very technology and innovation that you create. 

If intellectual property attorneys did not step in and advocate for our clients intellectual rights, like the copyright and trademark rights of Scrabble®, everything would be free game and copying and stealing would suddenly become the norm.  In fact it’s legal goons like us that advocate and protect the copyright held in the very article written above.

Trust me, I may be a legal goon, but I dig the digital age. 

Posted by Douglas Sorocco, January 17, 2008 at 2:01 pm
Permalink: Scrabble v. Scrabulous
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Is “Knocked Up” a Knock-Off?

Canadian author, Rebecca Eckler, is claiming one of the best romantic comedies of the summer (one movie that I have actually had a chance to see) was stolen from her book of the same name, “Knocked-up.”  It looks like she is in for an uphill battle since her main contentions are:

• the cover of her book and the cover of the screenplay are similar;
• the main character gets pregnant after celebrating; and,
• the father is a Jewish Canadian.

I guess the real question is whether this is just another a knock-off of the Da Vince Code lawsuit.

Posted by Douglas Sorocco, June 7, 2007 at 5:23 pm
Permalink: Is “Knocked Up” a Knock-Off?
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the magical kingdom of copyright law

Disney characters say it best in this humorous and informative recitation of copyright principles that includes an overall demonstration of fair use.  The beginning is a little jumpy so if you only have a couple of minutes to view it, I suggest skipping to around the five minute mark.  I can almost hear the sounds of Disney’s legal department cringing. 

Posted by Douglas Sorocco, May 22, 2007 at 1:54 pm
Permalink: the magical kingdom of copyright law
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No "Big Love" for use of a Mormon Trademark

In a recent article by the Associated Press, the Church of Jesus Christ of Latter-day Saints sent a cease and desist letter to Just Add Coffee, a Utah coffee shop, for using the image of a robed angel holding a trumpet up at an angle as coffee is poured into it.  The Utah coffee shop used the image in ads and to sell t-shirts and greeting cards.  The church claims that the image of the angel Moroni is a registered trademark. 

What’s even more interesting is the lengths to which the church has gone to protect its intellectual property rights.  The Church of Jesus Christ of Latter-day Saints has set up a non-profit corporation, the Intellectual Reserve, Inc., which owns most of the church’s intellectual property.  Most notably, in 1999, the Intellectual Reserve filed suit against Utah Lighthouse Ministries, Inc. seeking a preliminary injunction for copyright infringement.  The Intellectual Reserve claimed that the defendants were infringing their copyrights held in a Church Handbook of Instructions by posting it on a website.  The court granted the preliminary injunction.        

Sidebar comment: While writing this article I couldn’t help but to think back to the great South Park episode “All About Mormons”.  If you haven’t seen it, you can check out a summary of the episode here.

Posted by Douglas Sorocco, March 30, 2007 at 4:47 pm
Permalink: No "Big Love" for use of a Mormon Trademark
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UT Regents Hacked, I mean Saw’ed Off, with Aggieland Outfitters’ Use of Longhorn Logo

As a precursor, I am a graduate from the University of Oklahoma and I have admittedly participated in the OU/TX college rivalry by displaying upside-down longhorns on numerous t-shirts as well as the back windshield of my car. So I simply could not pass up the opportunity to share this story with you about two of OU’s rival schools.

The University of Texas Board of Regents recently filed suit against Aggieland Outfitters, a Texas A&M apparel store owned by Fadi Kalaouze in College Station, Texas.

Aggieland Outfitters sells various apparel items featuring the “Saw’em off” logo (seen right). The lawsuit asks that Kalaouze destroy all current logos and refrain from using the “Saw’em off” logo in the future. The UT Regents argue that the similarity of the marks is likely to create consumer confusion and that Aggieland has been and continues to be unjustly enriched at UT’s expense by the unauthorized use of the “Saw’em off” mark. Kalaouze argues that the mark is a parody and is protected by the First Amendment.

What are your thoughts? Is this a parody? Is this just poor sportsmanship? Do you think consumers would confuse the UT longhorn silhouette with an upside-down longhorn or one with sawed-off horns? Isn’t this just all part of college rivalry?

Boomer Sooner!

P.S. As a side note, Aggieland Outfitters has set up a legal defense fund at, http://www.sawemoff.com.

Posted by Douglas Sorocco, February 8, 2007 at 4:01 pm
Permalink: UT Regents Hacked, I mean Saw’ed Off, with Aggieland Outfitters’ Use of Longhorn Logo
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andy griffith sues andrew griffith

And you thought all the news about political campaigns and intellectual property would be over now that elections have ended. Don’t worry, it’s not over yet. Check out this story. William H. Fenrick, candidate for sheriff in Grant County Wisconsin, recently legally changed his name to Andy Griffith, allegedly in hopes of increasing his chances of winning the election. Andy Griffith, the actor, found out and recently filed suit against Fenrick alleging he violated various trademark, copyright, and privacy laws. The actor claims that Fenrick changed his name for the “sole purpose of taking advantage of Griffith’s notoriety in an attempt to gain votes.” Fenrick argues that he did not benefit from the name change as he lost the election and that the lawsuit is absurd because no one would actually think that he was the actor. Looks like he should have tried appropriating a different name. One of the posted comments to this story suggested that Fenrick should hire Matlock as his attorney.

Posted by Douglas Sorocco, November 17, 2006 at 2:33 pm
Permalink: andy griffith sues andrew griffith
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Alleged Copyright Infringement: Jodi Cobb v. Geisha House

Jodi Cobb, a photojournalist, recently filed suit against the LA restaurant, Geisha House, alleging that the restaurant used the picture from the cover of her book Geisha: The Life, the Voices, the Art (seen on the right at the top).  A

llegedly, Ms. Cobb’s picture was used in the restaurant’s signage on Hollywood Boulevard (seen on the right at the bottom), on business cards, matchbooks, menus, and even chopstick holders.  The Geisha House argues that it is not the same photograph. 

The restaurant stated that they wanted to use Cobb’s picture however, her licensing fees were too high.  Instead, the restaurant argues that they created their own version of Cobb’s picture.  It appears that the restaurant may have been trying to assert the defense of independent creation by arguing that they independently created the work.  However, according to Nimmer on Copyright, evidence of access and substantial similarity are sufficient to create an inference of copying.  It seems to me that the Geisha House may be in a bit of Geisha-trouble.

Posted by Douglas Sorocco, November 10, 2006 at 3:36 pm
Permalink: Alleged Copyright Infringement: Jodi Cobb v. Geisha House
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Mele Kalikimade is the Hawaiian’s way

Things are getting hot out in the Pacific, and it isn’t at the luau.  Kim Taylor Reece, known internationally for his hula photography, claims Leialoha Colucci’s stained glass art, offered for sale at a Kaliua gallery, infringes on his photo “Makanani.”   The Ilioulaoklalani Coalition is claiming that Kim Taylor Reece is just trying to copyright the hula move itself saying that “Makanani” is just a photo of a woman in a particular hula pose on the beach. 

This isn’t just an ordinary snapshot of a hula dancer.  The photo was actually taken with Kim Taylor Reece lying in water with the model kneeling in the sand putting emphasis on the upward reach of her right arm and hand.  Leialoha’s stained glass, interestingly enough, has the same kneeling position, at the same angle, and just to take it one step further – the same windblown hair. 

Not surprising – the court held Reece’s photo had copyrightable aspects including the particularities of her pose, the angle Reece captured her, and her expression.   Somewhat surprising – the term “racist” is being thrown around.  Mahalo.

Posted by Douglas Sorocco, November 3, 2006 at 10:45 pm
Permalink: Mele Kalikimade is the Hawaiian’s way
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Flickr Interestingness Rankings Patents Released

Over at the SEO by the SEA blog, William Slawski has posted on newly published patent applications filed by Yahoo convering an implementation of the concept of “interestingness search.” 

There is a pretty good exchange in the comments between William and Thomas Hawk – a celebrated photographer on the Internet and someone who is directly involved with the Zooomr web photo service. 

Zoomr is a direct competitor with Flickr, which is now owned by Yahoo.  Presumably Zoomr may have some issues if the patents are ever issued.  As a word of caution to Thomas (and all other bloggers out there) – I would be very careful in what you say about your technology and when/how/who it was developed.   All of your comments could be used as admissions down the line.

Anyway…

While the discussion between Thomas and William follows the typical “software patent discussion framework”(TM) of outrage, more outrage, denial, and chest thumping about how “Person X, Y, Z” came up with the idea 1, 2, 4 or 100 years ago… I was pleased to notice that William and Thomas actually took some time to thoughtfully discuss what Yahoo was trying to do with its patent applications and how they fit in with the overall search and photo-sharing market out there.

My only quarrel with their discussion: like all that fall within the “software patent discussion framework”(TM) — they failed to look at the actual claims of the patent and instead debated the description that the inventor drafted.  Once again – it is the claims that control the scope of the patent, not the description directly. 

All discussion of patents or patent applications should start first and foremost with the claims… it is the claims that control.

As a taste of what to expect over at SEO by the SEA:

Flickr Interestingness Rankings Patents Released

posted @ 2:17 am in [ Social Search ] by William Slawski

I’ve posted some pictures to Flickr, but I’ve never really paid much attention to the “interestingness” rankings the site uses.

Interestingness and clustering were first used in August of last year, as announced by Stewart Butterfield on the Yahoo Search Blog and the Flickr blog.

Blog posts about Flickr’s interestingness, and a February Flickr forum post on changes to the interestingness rankings, show a lot of interest in the “secret sauce” on how photos are determined to be interesting. A couple of patent applications were published by Yahoo this week that delve into interestingness rankings, clustering of pictures, and metadata associated with Flickr images.

Posted by Douglas Sorocco, November 2, 2006 at 12:32 pm
Permalink: Flickr Interestingness Rankings Patents Released
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