01 Sep WHAT A GOOD IDEA
Margaret A.M. Heine
is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.
WHAT A GREAT IDEA!
You have been home for months now, are your creative juices flowing? New ideas? New products? New services? A new book? A new invention?
There has been a surge in developing new ideas, patents, trademarks, and creating new products, inventions, screenplays and books.
How do you protect all of these great ideas? There are a number of things you can do so that your idea doesn’t get stolen! All of the options fall under the category of Intellectual Property.
Intellectual Property broadly is copyrights, trademarks, and patents. Conceptually, it protects your words, your ideas, your designs, and any proprietary new inventions, formulas, ideas and artistic works. The various agencies which handle these rights generally try to make sure that your idea is not someone else’s idea, and makes it so that no one can steal your idea from you.
A copyright protects words. Books, music, lyrics, screenplays, architecture, software, artistic works are all covered by copyright laws. Copyright laws allow the publication, distribution, and sale of works while protecting them from being stolen or misused without permission of the owner of the copyright. The copyrighted work is usually designated by the “©” symbol. This means that the work has been registered and is a protected work under the United States copyright system. The United States Trademark and Patent Office and with the Library of Congress (Office of Copyrights) provides structure to the copyright process.
A copyright provides protection to the copyrighted work for an individual is the life of the individual plus 70 years. That is why there is value to an estate of an individual and why the ownership of the copyright is so important to members of the decedent’s family.
For example, the value of the Intellectual Property in the Estate of Michael Jackson or John Lennon or Elvis Presley, has been of enormous value to their respective families. It is also why families of many artists sue for violation of the copyright laws (use of musics, lyrics) or their image. If you fail to protect your property, then you will lose the right to use the property exclusively. That new commercial jingle you’ve dreamt up, it needs to be copyrighted.
A copyright is granted after an application is filed with the Office of Copyrights within the Library of Congress. They will ask information about who created the work (it is easiest when you are the creator of the work), if it was someone else, you have to prove you have the right to copyright the work. You will submit the work along with your application. Registration fees are very reasonable at $45-150.00 per application (one application per work). There is also a process where you can copyright a “collection of works”, which would be up to 10 items all classified as a “collection”. You can fill out the applications online or file a paper application. Additional information can be found at Copyright.gov.
A trademark is a registration which protects a word, a phrase, a symbol or a design. The design would typically be the logo for a brand. For example, the swoosh of Nike, the polo player on horseback for Polo, the Mermaid on Starbucks, the apple on Apple products. These are all Trademarks. A trademark when filed and approved will usually be denoted using the “®” symbol or the letters “TM”. If filed, registered and approved by the Trademark office, you have national protection for the use of that mark on your products. When you apply for registration you must indicate what the trademark is going to used on, whether color is an important component of the mark, and whether it is presently in use. Phases that trademarked are usually specific to a particular product or brand, like “Just Do It”, “Where’s the Beef”, “Families First”. You cannot trademark or take ownership of common, ordinary words. Also, you cannot use a trademark which might confuse the public and have them think they are purchasing products from a company, when they are not. For example, similar sounding, but spelled differently: “Which Water” and “Witch Water” would conflict with each other, “Starbucks” and “Starbux” would conflict with each other. So, it needs to be uniquely different from other similar names which are protected. The Trademark office conducts a test for each submission, and makes a publication to see if anyone objects to the issuance of a Trademark. The office looks at “sounds alike, looks alike, is it the same category: for example, a food, clothing, a publication.
A Service Mark, “SM”, identifies a business which is in the service industry, for example Rotary “Wheel”, United Airlines “Fly the Friendly Skies”, Southwest Airlines “I (Heart) SWA”, and McDonald’s “I’m Lovin’ It”. They go through the same examination as Trademark applications. There is a cost to receive A Trademark or Service Mark depending on the classification and categories it is being requested to be used for. Fees start at $275.00. Trademarks and Service Marks are handled by the Office of Patents and Trademarks. More information is available at uspto.gov.
Finally, there are patents. A patent is used for a process or a machine, an innovation. The idea or process has to be novel or unique, not something within the common knowledge. Usually, a patent attorney is used to help process patent applications. A Patent attorney is specially licensed and meets specific criteria to practice patent law. A patent could be a new piece of machinery, a combination of materials creating a new material which hasn’t been done before—caveat, however, no patent may issue for anything radioactive, nuclear weaponry. The patent cannot issue for a mere idea. It has to be in physical use and be presently made. A patent could also issue for a new compound, for example, drugs and pharmaceuticals. New drugs, using ingredients in a new way to make a new product, is patentable. Full schematics, drawings, samples, and formulas need to be provided in order for a Patent to be granted. A Patent typically protects the product for 15-20 years depending on the type of Patent. There are two types of patents: utility patents and design patents. The patent process can be complex, nuanced, and technical. It would be recommended that legal assistance be sought to file a patent application. There is a $400 fee for filing the application for a patent.
So, now you are protected, you may sell, license, or collect royalties on your ideas! Hoping that we all have come up with at least one profitable idea during this unprecedented time! Here’s to inventing and creating!