In part one of this series, we asked the question, “What’s the difference between copyright, trademark, patent, and trade dress?” and determined what they had in common is that they all relate to the products of ideas. All are a form of property, which we defined, in its most basic terms, as something capable of ownership, and then noted how patents, which like copyrights, are constitutionally regulated and ( unlike copyright) apply to inventions.
Right now, copyrights, trademarks, and maybe that lesser-known kind of “trade dress”.
Literally, a “copyright” means the “right to ‘copy’.” A copyright prevents or limits “copying” or imitation and consists of the exclusive legal right to reproduce, publish, sell or distribute the material and form of a literary, musical or artistic work. More technically, copyright protection applies to the original works of the author fixed on any tangible medium of expression that can be perceived, reproduced or communicated, directly or by means of a machine or a device.
This column, my previous 2,000 or so columns, the novels I’ve written, Taylor Swift’s latest song, Adele’s and Ed Sheeran’s are all copyrighted.
Protection automatically attaches to the “fixation” of the author’s work on any material medium, whether the work is published or not. In other words, once the work is committed to a written or other ‘permanent’ form, voila! Also, even though an idea can be copied, aren’t all love songs pretty much the same? — the mode of expression may not be. It’s the telling of the story that counts. When Ed Sheeran sings “Perfect”, no one can express their devotion in the same way.
In terms of copyright protection, registration of the work (with the US Copyright Office) is essential. If your masterpiece is ever infringed, copyright registration will provide a warm and secure cocoon, and entitle you to legal remedies not available without registration.
The term “trademark” is often used to describe three categories of names: trademarks, service marks and trade names. To be absolutely current, a “trademark” is a word, name, shape, slogan, color or symbol that is used to identify a particular product. To be considered a trademark, it must be used in connection with the product itself, rather than just in advertising.
To be a trademark, the symbol must either appear on the product or on its packaging. Some well-known brands are the Nike swoosh, the Starbucks siren, the Golden Arches, and the stylized Coca-Cola lettering. These symbols are familiar to all of us.
We see the swoosh, and we think Nike. And that is precisely the point. It’s kind of a marketing shortcut. When you see the Golden Arches, nothing more needs to be said. Some marks are among the most universally recognized symbols in the world and as such have considerable commercial value.
A service mark, on the other hand, is used to identify the services (rather than a product) provided by a company. The name “United Airlines”, the slogan “Fly the Friendly Skies” and the world map logo are service marks. Service marks appear on advertising, signs, business cards, and letterhead since there is no physical product to which the service mark can be attached.
If a business name is not considered a service mark because the services are not rendered, the business name is a “trade name.” A trade name is the name a business uses to identify itself. A trade name may be different from the legal business name.
Say, for example, my business name is United Widgets, Inc., but I prefer the more user-friendly sounding Fidget Sticks, what I could do is register the business name. Even though the company name would remain the same, I would “do business” in front of the public under the trade name Fidget Sticks.
Finally, we come to trade dress, which deals with the design and shape of the materials in which a product is packaged. Product configuration, design and shape of the product itself can also be considered a form of trade dress.
Think of the distinctive shape of a classic Coca-Cola bottle. You see this shape and, even without the logo, you think you might want to drink a Coke. It’s the dress code. The box of Crayola Crayons with its distinctive shape and attributes is a business presentation.
Trade dress is the characteristics of a product’s visual appearance or packaging (or even the design of a building – the Chrysler building in New York with its distinctive scalloped tippy-top?) that signifies the source of the product for consumers.
Lanham law protects trade dress if it performs the same source-identifying function as a trademark. Although it is possible to register a trade dress as a trademark, for convenience most trade dress and product configurations are protected without registration under 15 USC § 1125(a). Unlike copyrights and patents, which have an expiration date, trade dress rights can last indefinitely, as long as the owner is actively using the trade dress.
Trademarks, patents, copyrights and trade dress make our economic world go round and provide the legal power to protect the works of the creative mind.
Rohn K. Robbins is an attorney licensed by the bars of Colorado and California who practices in the Vail Valley with the law firm of Caplan & Earnest LLC. His areas of practice include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins can be reached at 970-926-4461 or [email protected]. Her novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available on Amazon.com — and soon, “Why I Walk So Slow.”