There’s not a business in existence that isn’t affected by intellectual property. Which of course begs the question – what is intellectual property? It’s an umbrella word for the bundle of rights one has in trade secrets, product and business names, inventions and discoveries and every kind of creative work, including content. In the United States, intellectual property protection falls under trademark, copyright, patent and trade secret law. In other parts of the world, primarily in the European Union, there are additional types of intellectual property rights that have no counterparts in the US.
Some of the biggest mistakes made by businesses are intellectual property mistakes. That’s what keeps trademark lawyers, copyright lawyers, patent lawyers and digital lawyers busy, especially in this digital centric world.
For example, did you know that even if a Secretary of State has approved your business name, someone with federal trademark rights could prevent your use of the name? A federal trademark registration for a name gives the owner exclusive national rights in the name as against anyone who starts using a confusingly similar name. Not just an identical name – but a confusingly similar name. For example, we were able to prevent the use of the name CityBrokerfor a brokerage company on the strength of the federal registration of Citibank. As trademark lawyers Malibu CA trusts for the Gallo Winery, which owns a federal registration of the Gallo trademark, we recently were able to stop the use of the name El Gallo for an energy drink. And as trademark lawyers for the American Idol and America’s Got Talent brands, we are able to stop uses of a wide variety of product and business names that incorporate the word Idol or Got Talent.
Similarly, many companies have invested in new product names without fully checking to see whether there are any protected trademarks that could stop the use. And merely checking the Patent and Trademark Office website is not enough. That website only covers registered trademarks. Since there are also unregistered rights in trademarks, more sophisticated searches should be done first.
Many businesses also assume that any content posted on the web – images, video, artwork, and photos — are in the public domain and free for anyone to use. That’s just wrong. The only copyrighted works that are in the public domain are those created in the early 1900’s, or held by a court to be in the public domain, or not properly renewed (if registered before 1978) or donated to the public domain. Getty Images for example, has a whole library of images it has dedicated to the public domain. Anything else is still protected by copyright. There can be fair uses of copyrighted works, but whether or not a particular use is a fair one requires legal analysis.
Thanks to our friends and contributors from Holmes Weinberg, PC for their insight into intellectual property practice.