Thursday, April 23, 2009

what I'm reading

Normally I like to put the title of the book I'm reading in the title of the post, but The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets, & Licensing seemed a little wordy. Long title aside, this is an excellent book that really highlighted the differences between copyright, trademarks, and patents. If you run any kind of creative business, I highly recommend that you read this book. As I read, I was able to clearly apply the discussions to my own work.
Here's a little summary, and how it applies to my work:


Trademarks cover the source of the product, not the product itself (even though we might call a product by its trademark name). One example is that Twinkie is the source of a snack cake (ie. Twinkie brand snack cake). Coca-Cola is the brand of soda, etc.
It is difficult to trademark a "weak" mark - meaning a trademark that is purely descriptive of a product. The "strongest" marks are those that have no relation to the products being sold. (Such as Apple computers.) Which means I would have a difficult time trademarking cozy/cuff - its really just a descriptive name. If I wanted to trademark cozy/cuff, I'd have to prove secondary meaning - basically, that I've used the name so much that it is now synonymous with only my brand. That takes time to establish, so for now, no trademarking of cozy/cuff.

This is the area where I though I understood the most, but it turns out I still have so much to learn. Did you know that you can't copyright useful things? Copyrights are meant to protect expressive works. However, there is a blurry boundary between creative and useful objects and copyright can cover certain aspects of a useful object.
According to the book, "Copyright is best suited for art that appears on functional objects such as a design or ornamentation that is not part of the physical, functional structure of the object." This really struck me, because one of the ideas I work with is that surface is structure, that the pattern designs become the objects themselves.
I've already filed for a copyright for the cozy/cuff, and ultimately, this should give me some level of protection if someone were to copy my idea directly. But if copyrights don't cover it, then what's left?

Design Patents
The other option is to file for a design patent. "Design patents are best suited for protecting the shape and appearance of useful objects such as perfume bottles bottles, furniture, cars, and appliances, which have designs that have commercial and economic value." This does seem much more applicable to my work. However, while easier to apply for than a traditional patent, design patents are still difficult to obtain and expensive. Based on the costs on the PTO website, it would cost over $600 dollars to apply for a design patent, plus over $3,000 in maintenance fees over the next 12 years. And those are the reduced rates for small businesses!  And you must apply for a design patent within one year of an object being sold or used.

Unfair Competition
After reading most of the book, it did seem like there were still a lot of opportunities to have others steal your ideas or designs. Fortunately, there is one more method of legal recourse - which is unfair competition. This affords some protection for someone who is copying aspects of your design in such a way that (while not covered under copyright, trademark, or patent) that seeks to confuse the public on the identity and source of the product. This should offer some means of protection over someone trying to co-opt your entire brand identity as their own. (At least I hope this is the case).

One last thing I learned from the book is no matter what form of intellectual property law you are covered under, you must constantly police for infringers of your work.

This is just a small snippet of the information covered in this book, and some of the ways I've applied it to my situation. This book is a worthwhile (and easy) read - its not too legal-jargon-y, and really helped me understand the differences between copyright, trademark, and patents.

1 comment:

Kathleen Stoltzfus said...

Great info on trademarks, etc., thanks. Also, I must tell you that I LOVE your little catalog - especially how you show the cozy/cuff on a cup that's being held by a hand wearing a cuff, all in a row with the other cuff colors. Very well done!