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