Intellectual Property


The Law Offices of Marcia E. Depew feels strongly that understanding what types of intellectual property you possess is an important step for all new business owners.

Here are some basics:

Do trademarks, copyrights and patents protect the same things?

No, trademarks, copyrights and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

What is a trademark?

A trademark is generally a word, phrase, symbol or any other design that identifies and distinguishes the source of goods from one party in the marketplace. In other words, a trademark tells the consumer where a product came from, thereby ensuring consistent quality of goods and strength in the connection between consumers and brands. Trademark registration is based on “use in commerce,” meaning you must be using the mark in commerce on all the goods/services listed. If you are filing based upon a “bona fide intent to use the mark,” you must have a good faith or bona fide intent to use the mark on all the goods/services listed.

What is a service mark?

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Generally, the terms “trademark” and “mark” refer to both trademarks and service marks.

What is trade dress?

Trade dress is the design of a product (shape or configuration), the packaging in which a product is sold, the color of a product or of the packaging it’s sold in and the flavor of a product. If a feature of the trade dress is essential to the use or purpose of the article or if it affects the cost or quality of the article then the trade dress is functional and cannot serve as a trademark. Trade dress may be used in connection with goods or services.

What is a trade name? Can a trade name be a trademark?

The name by which a company does business is known as a Trade Name (also called a dba – “doing business as” or “fictitious business name”). Depending on location, a trade name is registered through the county clerk’s office or state government. A trade name is distinguished from a trademark or service mark in that a trade name does not afford any brand name (trademark name) protection or provide exclusive rights for the use of that name. The Trademark Act defines “trade name” and “commercial name” as any name used by a person to identify his or her business or vocation and generally will not register trade names.

How can I distinguish between goods and services?

Goods are products, while services are activities performed for the benefit of someone else. The difference between goods and services can be confusing. Are your customers paying for a product or paying you to perform a specific activity? If your customer is paying you for a product, such as a surfboard or teapot, then you have goods. However, if your customer is paying you to perform an activity, such as surfboard rental or tax preparation, then you have services. In an application for trademark registration, you may list both goods and services.

When can I use the trademark symbols TM, SM, and ®?

If you claim rights to use a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim of ownership of the mark, regardless of whether you have filed an application with the United States Patent and Trademark Office (USPTO). However, you may only use the federal registration symbol “®” after the USPTO actually registers a mark and not while an application is pending. You may only use the registration symbol with the mark on or in connection with the goods/services listed in the federal trademark registration. No specific requirements exist as to the precise use of the “®”symbol relating to placement, whether used in a subscript or superscript manner.


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