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How are trademarks, patents, copyrights created? P.2

Previously, we began looking at some of the general differences between patents, trademarks and copyrights. As we noted, these differences lie not only in the fact that these protections apply to different types of intellectual property, but also in the types of protection available under both state and federal law.

To begin with, one common misconception about copyrights, trademark, and patents is that federal registration is necessary in order to create intellectual property rights. This is not entirely true. Although federal registration is necessary in order to obtain protections under federal law—and these protections are certainly critical, in many cases—some intellectual property protections apply at the state level. The extent of these protections depends on the area of intellectual property, though.

First of all, patent protection is governed almost solely by federal law. Federal patent protection gives an inventor the right to exclude others from making, using or selling the invention for a period of time in exchange for public disclosure. Patent protection exists when the patent is granted, and confers various benefits to the holder.

Like patent protection, copyright protection is mostly governed federal law, though some state law copyright protections may also exist. Federal copyright protection gives the copyright owner the exclusive right to engage in various activities based on the work, and to authorize others to do so. Both copyright and patent protection also involve consideration of state laws and regulations governing the ownership, inheritance, and transfer of personal property, as well as contractual agreements.

Trademark protection exists more substantially under state law than patent and copyright protection. Under state law, trademark protection exists by virtue of using a mark in commerce, while federal trademark protection exists once a trademark is registered. In some cases, trademark protections under state law may be stronger than those based on federal registration, for example, if the state law use of the trademark was earlier than the use upon which federal registration is based. Because of this two-tiered system, it is important for those considering federal registration of a trademark to consider the possibility of existing trademark protections under state law. Trademark protection under federal law confers substantial benefits, but due diligence needs to be done before selecting and registering a mark.

Navigating trademark, copyright and patent protection is not necessarily an easy matter, either in the creation of intellectual property rights or in handling allegations of infringement. Working with an experienced intellectual property attorney is critical in order to protect one’s interests in this area. 

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