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Legal

2004-07-01 11:24:00

Trademarks & copyrights

ANSWER:    Trade-marks are words, phrases, symbols or designs that distinguish goods or services of one business from those of another. Common examples include Pizza Hut®, Starbucks® and "Can you hear me now? Good.®"  These words and phrases bring an instant mental image to most people's minds - and that's what makes a trademark valuable.  From a consumer's standpoint, trademarks ensure you that a product or service comes from a particular company and that you will get a product or service of a particular quality.  From a business standpoint, trademarks are advertising devices that attract consumers and create a demand for products.To protect this valuable asset, many businesses register their trademarks.  Other businesses rely on "common law" protection for trademarks, which is available without registering a mark.  However, registering your trademark gives you many more rights and remedies in the event of an infringement.  Not all words or phrases can be protected as trademarks.  "Generic" marks cannot be protected.  For example, the word "soda" is a generic word in the beverage industry.  It would be unfair to give one company the exclusive right to use the word, because consumers use it to describe carbonated beverages in general.  "Descriptive" marks cannot be registered unless they have developed a "secondary meaning."  This means that when people hear a word or phrase mentioned, or see a particular symbol, they think of a particular product or business. Other words, like "Kodak®" or "Crayola®," are "arbitrary" and have no meaning apart from the products they identify.  These marks are registrable without proving secondary meaning.   Likewise, "suggestive" marks can be protected without secondary meaning.  A trademark attorney can help determine what type of mark you have, whether it can be protected and what steps should be taken to best secure that protection. Like trademarks, copyrights are something most people have heard about but few fully understand. Generally defined, federal copyright law provides protection for any "original works of authorship."  This definition implies - and many people believe - that copyright applies only to books, newspapers or other formal written works.  However, the subject matter of copyright is very broad. You create and use items that are protected by federal copyright law every day.  Copyright applies to everything from letters to photographs to music to an architect's design for a house. Copyright law in the United States has changed many times during the last 20 years.  Under current copyright law, copyright protection exists from the moment a work is created.  And, anyone copying or reproducing the work without permission could be held liable for infringement. Whether a copyright notice must be attached, and what form that notice must take, depends on whether or when the work was first published.  The remedies available for copyright infringement can vary, too.  An attorney skilled in this area of the law can help you answer these questions.Another type of intellectual property that affects many people is trade secrets.Broadly defined, a trade secret is anything that gives a business an advantage over its competitors and is not generally known by the public or others within a particular industry.  Trade secrets can include formulas, patterns and programs, as well as the processes or procedures that a business uses in daily manufacturing. There are two major keys to qualifying something as a trade secret.  The first is fairly obvious: It must be a secret.  The second is that a trade secret must be something that "derives independent economic value from not being known or readily ascertainable by others in the public or same industry."  In plain English, that means the secret is more valuable because you are the only one who knows it. The secrecy requirement does not mean that only one person can know the information, though.  Obviously, some trade secrets are not valuable unless they are disclosed.  For example, if you invented a unique process for refining oil that eliminated all air pollution, it would be a valuable discovery.  However, the discovery would lose its value if it could not be revealed to your employees who had to use the process.  Trade secrets can be revealed, therefore, on a "need-to-know" basis without jeopardizing their status as "secrets."  Nevertheless, strict control measures should be followed in determining to whom this information is revealed. Companies commonly attempt to prevent disclosure of trade secrets by using two types of agreements: non-compete agreements and non-disclosure agreements. In a non-compete agreement, an employee typically agrees not to compete with the employer in a particular area for a particular length of time after his employment.  If you are the employer, it is important to have an attorney knowledgeable in this area of the law draft these agreements to make sure you are adequately protected.  If you are an employee being asked to sign a non-compete agreement, it is important to have your attorney review the agreement to make sure you understand the restrictions it places on you. Like non-compete agreements, non-disclosure agreements are used to help protect valuable trade secrets.  This type of agreement, however, has broader implications. A non-disclosure agreement prevents people from disclosing trade secrets to others.  While a non-compete agreement restricts a former employee from actively competing with a business that alone would not prevent the employee from revealing trade secrets to third parties. A non-disclosure agreement prevents this from happening.  As with non-compete agreements, a non-disclosure agreement should be drafted or reviewed by an attorney who is familiar with the legal requirements for this type of agreement.