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Creative Leisure News
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Answers to your troubling and tricky legal questions. Protecting Your Intellectual Property The difference between utility patents, design patents, trade secrets, trademarks, and copyrights.. by Andrea Lynn Evensen (November 15, 2010) (Note: Ms. Evensen is an attorney with Brink Hofer Gilson & Lione, one of the foremost intellectual property law firms in the United States.) Crafters create finished products and numerous companies provide the means for doing so -- the yarn, thread, cloth, sewing machines, needles, etc. Together, companies and individuals expend countless hours, time, effort, and resources to create a single, heartfelt treasure. But what becomes of one’s creations when posted to social media sites, circulated elsewhere on the Internet, or copied and reproduced the old-fashioned way? How can craft companies protect their unique and novel materials, tools, and machines? How do individuals protect their final products? The U.S. Constitution provides that Congress shall have the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. . . .” (U.S. Const. art. I, § 8). Congress, in carrying out that power, has provided numerous avenues for protecting the processes, systems, and methods that crafting companies may employ and the trade names under which their goods may be sold. Similarly, individuals’ original works of art are also protect-able. Welcome to the complex world of intellectual property involving patents, trademarks, trade secrets, and copyrights. Utility patents. Have an inventive sewing machine or method of knitting something faster? Consider a utility patent. Utility patents -- the most common type of patent -- protect the way something works. In other words, they protect the novel function or operation of a machine, process, or system. A utility patent gives the patent owner a limited-time monopoly of 20 years from the earliest effective U.S. filing date from others making, using, or performing that which is patented. A patent is available to the public and not secret -- that is the price one pays for receiving a limited-time monopoly. Utility patents in the craft industry are not new; in May 1809, the U.S. Patent and Trademark Office (USPTO) granted a patent for a method of weaving straw with silk or thread to Mary Dixon Kies, the first woman ever issued a patent. Since then the USPTO has granted numerous craft-related patents, such as a yarn tension control device, quilted fabric panel cutter, sewing thread, and quilting table for a sewing machine (U.S. Patent Nos. 7,806,358, 7,617,751, 7,594,381, 7,370,591). Design patents. Have a novel ornamental fabric design or ornamental yarn? Consider a design patent. Design patents protect the exterior appearance of an article of manufacture and last 14 years from the issue date. Because a design patent protects an article of manufacture, it cannot protect a picture, print or impression. Although functional aspects of the article are not protect-able by a design patent, non-functional ornamental aspects may be protect-able. For example, the USPTO has granted design patents for the ornamental design of a decorative yarn, sewing machine, and prayer quilt (U.S. Patent Nos. D609,016, D620,504, D591,547). Trade secrets. Have a unique process for manufacturing fabric that competitors simply cannot know? Consider a trade secret. Trade secrets protect information that creates independent economic value from being generally not known. They do not expire, provided they are maintained in secrecy through reasonable efforts. One doesn’t apply for a trade secret. Rather, information is deemed a trade secret through a litany of legal tests, including that the information is protected from disclosure. Examples of trade secrets are Coca-Cola’s cola formula and Kentucky Fried Chicken’s 11 herbs-and-spices chicken recipe. Trademarks. Have an arbitrary name for a long-arm quilting machine or thread? Consider a trademark. Trademarks are words, names, symbols, or designs (or combination of them) that identify and distinguish one good’s source from another’s. Although not required, federal registration is recommended because it provides constructive notice to the public that that mark is owned and gives a legal presumption that the registrant has the exclusive right to use the mark. Once registered with the USPTO, the registrant can use a circle-R mark ® to signify the registered trademark. Trademarks are divided into four categories: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. Generic marks are ordinarily nouns, the name of a class of things or member of a class (i.e., shredded wheat for cereal) and are not protect-able. Descriptive marks describe a product (i.e., SPEEDY for a delivery service) and offer protection in certain circumstances. Suggestive marks hint at the product but do not describe a quality or characteristic (i.e., IVORY for soap suggests whiteness) and are protect-able. Arbitrary or fanciful marks are, respectively, coined, meaningless designations (i.e., KODAK for cameras) or common words used in unexpected ways (i.e., APPLE for computers) and constitute the strongest type of protect-able mark. Copyrights. Have a quilt pattern or needlepoint art? Consider a copyright. Copyrights protect original works of authorship from being copied, reproduced, displayed, performed, or distributed, or from being used in derivative works created by someone other than the copyright holder. Works of authorship are not limited merely to written works, such as books. Rather, the phrase describes a broad category of works, including literary works; musical works (including any accompanying words); dramatic works (including any accompanying music); pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Copyrights last 70 years after the creator dies or, in the case of works made for hire, the shorter of 95 years from publication or 120 years from creation. Securing copyright protection is easy because copyright happens automatically when the work is created. However, registering one’s work with the U.S. Copyright Office is recommended and is necessary should one need to enforce the copyright through a lawsuit. Additionally, it’s recommended, although no longer required, that the work include the circle-C mark ©, the year of first publication, and the owner’s name, i.e., © 2010 Jane Doe. An original quilt pattern, fabric design, scrapbook, needlework piece, and knitted toy all may be copyright-able. Patents, trademarks, trade secrets, and copyrights provide numerous avenues for protecting the craft industry -- from the manufacturers that invent, make, and design materials, tools, and machines to the individuals who compose a final product. Each avenue is unique and provides different types of protection for different types of intellectual property. To decide which avenue is right for a particular circumstance, one should speak with an attorney. (Note: Ms. Evensen can be reached at aevensen@usebrinks.com or 312-222-8120.) xxx |
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