+-----------------+-------------------+------------------+-------------------+
|                 | TRADEMARK         | COPYRIGHT        | PATENT            |
+-----------------+-------------------+------------------+-------------------+
| Constitutional  | Commerce          | IP Clause,       | IP Clause, Patent |
| and Statutory   | clause,           | Copyright Act    | Act               |
| Basis           | Lanham Act.       |                  |                   |
|                 | (There are also   |                  |                   |
|                 | state             |                  |                   |
|                 | trademarks.)      |                  |                   |
+-----------------+-------------------+------------------+-------------------+
| Subject         | Word, phrase,     | Creative         | Inventions—new    |
| Matter          | symbol, logo,     | works—for        | and useful        |
|                 | design etc. used  | example,         | processes,        |
|                 | in commerce to    | books, songs,    | machines,         |
|                 | identify the      | music, photos,   | manufactured      |
|                 | source of goods   | movies,          | articles,         |
|                 | and services      | computer         | compositions of   |
|                 |                   | programs         | matter. Not       |
|                 |                   |                  | abstract ideas or |
|                 |                   |                  | products/laws of  |
|                 |                   |                  | nature            |
+-----------------+-------------------+------------------+-------------------+
| Requirements    | Not generic (or   | Original and     | Useful, novel     |
| for Eligibility | merely            | creative         | and non-obvious   |
|                 | descriptive       | expression,      | to a person       |
|                 | without           | fixed in         | having ordinary   |
|                 | secondary         | material form    | skill in the art  |
|                 | meaning),         |                  | (PHOSITA)         |
|                 | identifies source |                  |                   |
|                 | of product or     |                  |                   |
|                 | service, used in  |                  |                   |
|                 | commerce          |                  |                   |
+-----------------+-------------------+------------------+-------------------+
| Rights          | Basic trademark   | Exclusive        | Exclude others    |
|                 | right only vis a  | rights to copy,  | from making,      |
|                 | vis a particular  | distribute,      | using, selling or |
|                 | good or service.  | make             | importing         |
|                 | Bass for beer,    | “derivative      | invention         |
|                 | not ownership     | works”,          |                   |
|                 | of word “Bass.”   | publicly         |                   |
|                 | Prevents others   | perform and      |                   |
|                 | from using        | publicly         |                   |
|                 | confusingly       | display.         |                   |
|                 | similar           | Possibly new     |                   |
|                 | trademarks; for   | right to stop    |                   |
|                 | famous marks,     | circumvention    |                   |
|                 | prevents others   | of digital       |                   |
|                 | from “diluting”   | ‘fence’          |                   |
|                 | the mark. Also    | protected ©      |                   |
|                 | prohibitions      | works.           |                   |
|                 | against false or  |                  |                   |
|                 | misleading        |                  |                   |
|                 | advertising.      |                  |                   |
+-----------------+-------------------+------------------+-------------------+
| Duration        | If renewed and    | Life plus 70     | 20 years for      |
|                 | continually used  | years; 95 years  | utility patents   |
|                 | in commerce,      | after            |                   |
|                 | can be            | publication for  |                   |
|                 | perpetual.        | corporate        |                   |
|                 |                   | works            |                   |
+-----------------+-------------------+------------------+-------------------+
| How Rights      | USPTO             | Creation and     | USPTO patent      |
| are Procured    | trademark         | fixation         | application       |
|                 | registration      | in a tangible    | process           |
|                 | process           | medium;          |                   |
|                 | for ® status,     | registration is  |                   |
|                 | though common     | not required to  |                   |
|                 | law rights        | get copyright    |                   |
|                 | are recognized    | (but is required |                   |
|                 | absent            | for suit to      |                   |
|                 | registration      | enforce)         |                   |
+-----------------+-------------------+------------------+-------------------+
| Examples of     | Genericity,       | Idea and         | Abstract          |
| Limitations     | nominative fair   | fact/expression  | knowledge         |
| and             | use, parodic use  | distinction,     | in patent         |
| Exceptions      |                   | scenes a faire,  | application       |
|                 |                   | fair use, first  | disclosed freely. |
|                 |                   | sale             | Subsequent        |
|                 |                   |                  | inventors can     |
|                 |                   |                  | “build on”        |
|                 |                   |                  | patented          |
|                 |                   |                  | invention and     |
|                 |                   |                  | patent result     |
|                 |                   |                  | without           |
|                 |                   |                  | permission. Both  |
|                 |                   |                  | inventors must    |
|                 |                   |                  | consent to        |
|                 |                   |                  | market resulting  |
|                 |                   |                  | compound          |
|                 |                   |                  | invention.        |
+-----------------+-------------------+------------------+-------------------+

* * *

Intellectual Property: Law & the Information Society
Selected Statutes & Treaties

First Edition, 2014

James Boyle, William Neal Reynolds Professor of Law, Duke Law School

Jennifer Jenkins, Director, Center for the Study of the Public Domain & Senior Lecturing Fellow, Duke Law School