For lawyers and non-lawyers, alike, intellectual property (or “IP”) represents an extremely important sect of law due to its ability to protect “creations of the mind,” such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Despite the enormous importance of IP – which is protected in law by, for example, patents, copyright and trademarks, which enable people to control and/or gain a financial benefit from what they invent or create – it is commonly misunderstood by creators, journalists and other laypeople. So, here is a very brief look at IP and a few points to help you gain a firmer grasp of this important legal field …
The U.S. legal system (as distinct from the national protections provided in the countries of our international fashion counterparts, namely, Italy, France, and the United Kingdom) provides certain rights and protections for owners of various types of property, including intellectual property. Rights and protections for owners of intellectual property are based on federal patent, trademark and copyright laws and state trade secret laws. In general, patents protect inventions of tangible things; copyrights protect various forms of written and artistic expression; and trademarks protect a name or symbol that identifies the source of goods or services. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
The most common forms of IP are as follows …
COPYRIGHT: Copyright protection extends to “original works of authorship fixed in any tangible medium of expression” from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. This means that everything from original poetry, movies, CD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs are afforded protection.
The owner of a copyright has the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work; such rights typically endure his entire life and for 70 years after his death. The exclusive rights of the copyright owner are subject to limitation by the doctrine of "fair use,” which allows for the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement. To determine whether or not a particular use qualifies as fair use, courts apply a multi-factor balancing test.
TRADEMARK: A trademark is any word, name, symbol, design, or color (as we saw in Louboutin v. YSL and other cases) or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (such as those made by Reebok or Adidas).
Trademarks make it easier for consumers to quickly identify the source of a given good. Instead of reading the fine print on a can of cola, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made a certain athletic shoe, consumers can look for particular identifying symbols, such as a swoosh or a unique pattern of stripes. By making goods easier to identify, trademarks also give manufacturers an incentive to invest in the quality of their goods. After all, if a consumer tries a can of Coca-Cola and finds the quality lacking, it will be easy for the consumer to avoid Coca-Cola in the future and instead buy another brand. Trademark law furthers these goals by regulating the proper use of trademarks.
Unlike copyright and patent rights, trademark rights do not last for a fixed duration. Trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a federal trademark is 10 years, with 10-year renewal terms. However, the USPTO requires that between the fifth and sixth year after the date of registration, the registrant must file an affidavit stating that the mark is still in use. If no affidavit is filed, the registration is cancelled.
Before we move on, consider trade dress, a type of trademark law that extends to the configuration (design and shape) of a product itself. The definition of trade dress is broad, extending to “the total image of a product,” and it “may include features such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.”
Trade dress creates a visual impression which functions like a word or design mark, as an indicator of source. For example, the Chanel No. 5 bottle is instantly recognizable as the Chanel No. 5 bottle, even without the “Chanel” name on it. The same holds true for the appearance/design of the Hermès Birkin bag.
PATENT: A patent is an exclusive right granted for an invention. In other words, a patent is an exclusive right to a product or a process that generally provides a new way of doing something, or offers a new technical solution to a problem.
Patents fall into one of a few categories: design patents (those based on decorative, non-functional features), utility patents (inventions of new and useful processes, machine, manufacture, or composition of matter, or new and useful improvements thereof), or plant patents (new and distinct, invented or discovered asexually reproduced plants including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state).
The patent owner may give permission to, or license, other parties to use the invention. He may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires (usually 15 years for a design patent and 20 years from the filing date for utility patents), the protection ends, and an invention enters the public domain and anyone can commercially exploit the invention without infringing the patent.
* For additional resources on intellectual property, and fashion law in general - including but not limited to entries regarding trade, finance, cases of interest, Federal Trade Commission, and the internet - please visit our often-updated Reference section.