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An overview on Trademarks, Copyrights,
Trademarks are generally distinctive symbols, pictures, or words
that sellers affix to distinguish and identify the origin of their
products. Trademark status may also be granted to distinctive
and unique packaging, color combinations, building designs, product
styles, and overall presentations. It is also possible to receive
trademark status for identification that is not on its face distinct
or unique but which has developed a secondary meaning over time
that identifies it with the product or seller. The owner of a
trademark has exclusive right to use it on the product it was
intended to identify and often on related products. Service-marks
receive the same legal protection as trademarks but are meant
to distinguish services rather than products.
In the United States trademarks may be protected by both Federal
statute under the Lanham Act, 15 U.S.C. §§ 1051 - 1127,
and states' statutory and/or common laws. Congress enacted the
Lanham Act under its Constitutional grant of authority to regulate
interstate and foreign commerce. See U.S. Constitution, Article
1, Section 8, Clause 3. A trademark registered under the Lanham
Act has nationwide protection. See § 1115 of the Act.
Under the Lanham Act, a seller applies to register a trademark
with the Patent and Trademark Office. The mark can already be
in use or be one that will be used in the future. See § 1051
of the act. The Office's regulations pertaining to trademarks
are found in Parts 1 - 7 of Title 37 of the Code of Federal Regulations.
If the trademark is initially, approved by an examiner, it is
published in the Official Gazette of the Trademark Office to notify
other parties of the pending approval so that it may be opposed.
See §§ 1062 - 1063 of the Act. An appeals process is
available for rejected applications. See §§ 1070 - 1071
of the Act.
Under state common law, trademarks are protected as part of the
law of unfair competition. Registration is not required. See Unfair
Competition. States' statutory provisions on trademarks differ
but most have adopted a version of the Model Trademark Bill (MTB)
or the Uniform Deceptive Trade Practices Act (UDTPA). The MTB
provides for registration of trademarks while the UDTPA does not.
Further protection of trademarks is provided by the Tariff Act
of 1930. See 19 U.S.C. § 1526.
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Patents grant an inventor the right to exclude others from producing
or using the inventor's discovery or invention for a limited period
of time. U.S. patent laws were enacted by Congress under its Constitutional
grant of authority to protect the discoveries of inventors. See
U.S. Constitution, Article I, Section 8. The main body of law
concerning patents is found in Title 35 of the United States Code.
In order to be patented an invention must be novel, useful, and
not of an obvious nature. See §§ 101 - 103 of Title
35. Such "utility" patents are issued for four general
types of inventions/discoveries: machines, human made products,
compositions of matter, and processing methods. See § 101
of Title 35. Changing technology has led to an ever expanding
understanding of what constitutes a human made product. Specific
additions to the Patent Act provide, in addition, for design and
Prior to a recent amendment prompted by the Agreement on Trade-Related
Aspects of Intellectual Property (TRIPS) accompanying the Uruguay
Round GATT, patents were normally issued for a non-renewable period
of seventeen years, measured from the date of issuance. See §
154 of Title 35. Under the amended provision (which took effect
June 8, 1995) the term will be twenty years measured from the
date of application.
Patent infringement cases arise under Federal patent law over
which the Federal courts have exclusive jurisdiction. See §
1338(a) of Title 28 of The United States Code.
The Federal agency charged with administering patent laws is
the Patent and Trademark Office. See §§ 1-26 of Title
35. Its regulations, pertaining to Patents, are found in Parts
2 - 6 of Title 37 of the Code of Federal Regulations. Each patent
application for an alleged new invention is reviewed by a examiner
to determine if it is entitled to a patent. See § 1.104 of
Part 1 of Title 37 (C.F.R.). While historically a model was required
as part of a patent application, in most cases today, only a detailed
specification is necessary. See §§ 112 - 114 of Title
If an application is rejected, the decision may be appealed to
the Patents Office's Board of Appeals, with further or alternative
review available from the United States Court of Appeals for the
Federal Circuit, or in the United States District Court for the
District of Columbia. See §§ 134, 141, & 145 of
In 1975 the Patent Cooperation Treaty was incorporated into Title
35. See §§ 351 - 376 of Title 35.
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The U.S. Copyright Act, 17 U.S.C. §§ 101 - 810, is
Federal legislation enacted by Congress under its Constitutional
grant of authority to protect the writings of authors. See U.S.
Constitution, Article I, Section 8. Changing technology has led
to an ever expanding understanding of the word "writings".
The Copyright Act now reaches architectural design, software,
the graphic arts, motion pictures, and sound recordings. See §
106 of the act. Given the scope of the Federal legislation and
its provision precluding inconsistent state law, the field is
almost exclusively a Federal one. See § 301 of the act.
A copyright gives the owner the exclusive right to reproduce,
distribute, perform, display, or license his work. See §
106 of the act. The owner also receives the exclusive right to
produce or license derivatives of his or her work. See §
201(d) of the act. Limited exceptions to this exclusivity exist
for types of "fair use", such as book reviews. See §
107 of the act. To be covered by copyright a work must be original
and in a concrete "medium of expression." See §
102 of the act. Under current law, works are covered whether or
not a copyright notice is attached and whether or not the work
The federal agency charged with administering the act is the
Copyright Office of the Library of Congress. See § 701 of
the act. Its regulations are found in Parts 201 - 204 of title
37 of the Code of Federal Regulations.
In 1989 the U.S. joined the Berne Convention for the Protection
of Literary and Artistic Works.
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