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In U.S. patent law there is also something called a design patent, which applies to the ornamental design of a useful item. Contrary to the usual kinds of patentsutility patentsin order to get a design patent, you have to show that your design is non-functional, that is, the design is not part of what makes the object useful. Like utility patents, however, to get a design patent, you have to show that the design is non-obvious and novelthat it has never been done before. A design patent lasts only 14 years. Design patents are kind of a strange feature of U.S. intellectual property law. Most things that would be covered by design patents may be better protected under trademark law (which can last forever) or copyright law (which can last many decades longer than patents). Trademarks Trademark law has its origins in the protection of consumers against those wishing to mislead them into purchasing goods or services by falsely branding them with names or symbols of producers with good reputations. But the enforcement of trademark law is in the hands of the providers of goods and services. In order to earn trademark rights, a producer of goods or services must use in commerce a mark of some kinda word, a phrase, an image, or sometimes even a color or a soundas the indicator of the origin of those goods or services. The rights arising through such use for an unregistered trademark are called "common law" rights. If a federal registration has been obtained for a trademark, then that is referred to as a "registered trademark" and there are additional rights that flow from the registration. While patent rights are automatically enforceable nationwide against all those who might want to practice that patent, trademark rights are more bounded. A trademark holder only has rights that derive from the specific place, time, and manner that the trademark is being used in commerce. This region is called the zone of use. The zone of use is typically defined as the zone to which your advertising reaches and from which your customers are drawn. In contrast, the owner of a federal registration has trademark rights over the entire nation, although these rights are still bound by the time and manner of use, as with common law trademarks. For example, the owner of a yoga outlet might develop trademark rights in a particular name, say, Whole Health Yoga Studio, only in those specific areas where services are being provided, such as a particular town or county or state. Also, trademark rights are bounded by the specific types of goods and services being offered. So, Whole Health Yoga Studio might not have rights against Whole Health Organic Foods. Unlike patent rights, trademark rights are not the exclusive realm of the federal government. Trademark rights can also be developed under state law. So, depending on the reach and ambition of a businessand the reach of its competitorsa business owner has a choice of what levels to pursue protection. Furthermore, as stated previously, trademark rights are not granted by the government, like patent rights are. Trademark rights are developed through use in commerce. When two users of a trademark clash, there has to be a determination of who has senior rights, and this is based on which party has been using a mark longer in a particular field and/or geographic area. The only exception is for a trademark that has acquired significant national fame, in which case these limitations on field of use and geographic area do not apply. This mark would also be protected against dilution, regardless of the field of use or zone of use. Dilution provides the owner of the famous trademark the ability to forbid others from using the famous mark in any way that might dilute its uniqueness. The most common dilution situation involves someone using a famous mark without authorization on products that are not competing with, and often have little connection with, those of the trademark owner. Both state and federal governments allow trademark holders to register their trademarks, but it is important to understand that registration is not the source of trademark rights. Registration gives a trademark certain advantages when it comes to a legal dispute, but simply filing an application for a registration is not the same as acquiring trademark rights in your brand or symbol. Trademark rights arise from use in commerce, which is required for both common law trademarks and federally registered trademarks. Even when one applies to register a trademark, rights cannot be obtained simply by filing an application. In fact, in order to better understand IP law, IP protections, and IP enforcement, it might be well advised to not speak of "trademarking" something like a brand name or a logo. So, avoid using or thinking of the word "trademark" as a verb. A business doesn't "trademark" its name; rather it may "own" or "have rights" in its mark and it "uses" its mark and perhaps "register" it. Copyrights The same might be said of the word copyright. It is common to hear people talking about copyrighting something. But this term used as a verb doesnt help one understand how copyright law really works. Just as patent rights are granted when the government issues a patent, and as trademark rights are earned through use in commerce, copyrights have their own way of coming into existencefixation. Copyright protections come into existence when an author or creator fixes in a tangible medium an original work of expression. When an author fixes an original workfor example, by writing it down, or recording it, or filming itthen the exclusive rights granted by copyright law automatically come into existence. Like patent law, copyright law is the exclusive domain of the federal government (except for certain, very limited niche exceptions). There is also registration in copyright law, like there is with trademark law. But, as with trademark law, registration is not the source of rights. There are certain advantages to registration, and in order to bring a claim in federal court to enforce your copyrights, you must have registered, but your rights come into existence as soon as the work is fixed in a tangible medium. Trade Secrets Trade secret law is not part of federal law. It is the exclusive arena of state law in the United States. And almost all the states have passed some version of the Uniform Trade Secrets Act. In order to have trade secret rights, an enterprise must have a secretsome kind of advantage that is not generally known to competitors. This advantage must be confidential and material to their business. And the enterprise must take steps to protect that secret, such as ensuring that employees understand that they are not to reveal proprietary information to competitors. One of the most common forms of trade secrets is a customer list and client files. And one of the most common ways of misappropriation is for an employee to take such information and to start his or her own business by trying to poach customers from the list, using information like their purchase histories.
In 1984, the Pilates studio was taken over by a corporate entity that registered the term Pilates as a trademark. The studio and the trademark changed hands a few more times until they came under the control of an entity called Pilates Inc. In the 1970s, a furniture designerCurrent Concepts Inc.started making furniture specifically to be used for Pilates-style exercises, and it wanted to be able to advertise its furniture using that term as a descriptor. Having become aware that Pilates Inc. had claimed trademark rights in Pilates, Current Concepts brought a claim asking the U.S. District Court for the Southern District of New York to issue a declaratory judgment stating that the term Pilates was generic and that Pilates Inc. could not claim exclusive rights. In 2000, the court agreed with Current Concepts, and ruled that the term Pilates was generic both for services teaching the exercise style and also for equipment to be used in conjunction with it.
Anandashankar Mazumdar Anandashankar Mazumdar is a writer and editor based in Northern Virginia. He has been in the news profession for two decades and has specialized in legal reporting since 2000 and in intellectual property law since 2003. He has a bachelor's degree in mass communication from Wright State University, Dayton, Ohio, and a law degree from Georgetown University, Washington, D.C. He frequently reports on matters before the U.S. Supreme Court and the U.S. Congress and his reporting has been cited in law journals, in congressional testimony, and in reports by the Congressional Research Service. He is the host of the "Do You Copy?" Podcast and a contributor to the Bloomberg BNA Intellectual Property Blog.
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