What Type of Protection Do I Need for My Intellectual Property?
You know you have intellectual property you want to protect, and you know the difference between patents, trademarks, and copyrights. Now the hard part. How do I protect my intellectual property? What if my intellectual property falls into one or more categories? This article helps to define some typical associations, what types of intellectual property they are likely to have, and how they should be protected.
Musicians and bands could potentially have all three types of intellectual property. The two most common types for musicians are trademarks and copyrights. Trademark registration for their band’s name, but also for their individual name – in case they have plans to walk out on their band and become a solo performer. For example, Michael Jackson, who was originally part of the Jackson 5 before he became a solo performer. Both the name of the band “Jackson 5”1 and his individual name “Michael Jackson”2 are registered trademarks relating to the entertainment industry. Musicians and bands should undoubtedly register copyrights for their songs and lyrics to help protect themselves in a copyright infringement lawsuit, such as the infamous Cartier v. Jackson 3 case, where Michael Jackson sung his way to victory, then allegedly moonwalked away. While not as common as trademarks and copyrights are for musicians, the possibility of needing patent protection should always be on a musician’s radar. Speakers, microphones, music stands, and even Michael Jackson’s anti-gravity shoe4 are all potentially patent eligible.
In authoring a series of books the author should register both the common name of the series and each installment as individual trademarks as well as seek copyright protection for the manuscripts of the books themselves. For example, the name “STAR WARS”5 is a registered trademark and so are the numerous installments such as “STAR WARS ROGUE ONE.”6 Copyright registration should not only be sought for manuscripts, but also for the artwork relating to the book.
Clothing has some very specific guidelines that manufacturers must be aware of and we can write a whole series on fashion and intellectual property. Generally speaking copyrights and trademarks will be most applicable to clothing, however it is possible that patents could play a role as well.
If you are seeking to register the brand name of the clothing (e.g., Lululemon, Victoria’s Secret, Nike, etc.) these would need trademark registration, however, they may also need copyright registration. The best rule of thumb to think about here is where is the mark going to appear? If the mark will appear on the tag of the clothing a trademark is what you need. If it appears on say the front of a shirt, you need to ask the question “What will people think when they look at the mark?” If they look at it and think “Hey, that’s a Lululemon!” then a trademark is what you need. However, if a person looks at it and thinks “That’s a cool design, but I have no idea who made the shirt” then what you need is a copyright for that design.
Lastly, patents can come into play here. If you invent a new and improved zipper or gumball dispensing t-shirt7 patent protection is definitely possible. For patent protection to apply, think of whether there is some new functionality that is new. However, you may also be able to obtain a design patent for the look of a particular detail on a handbag, such as unique stitching.8
Software is tricky. Software often involves all three elements, patents, trademarks, as well as copyrights. For a new software program, a developer or company would seek a trademark registration for the brand name of the software (e.g., Adobe 9), seek a copyright registration for the code, and possibly seek patent protection for the code if the code is an improvement upon the prior art or is otherwise protectable by patent. With software, a major concern is whether to seek copyright protection or keep the code trade secret. If you register your code, then the copyright office will keep a copy of your code on file and once the term of your copyright is up it is open to the public. However, if you want to keep your code as a trade secret, which offers you protection but does not disclose it to the public, – like the Coca-Cola recipe – then your protection can last for as long as you keep the code secret, however, you are responsible for keeping your code out of the public domain.
ARC IP Law is well versed in all areas of Intellectual Property and its colleagues have a broad range of experience from fashion and music to hardware design and programming.
Danna Cotman is the founder of ARC IP Law and has a background in Fashion Design, a Master’s in Business Administration, and has successfully represented clients before the United States Patent and Trade Office (USPTO).