Law Library Articles

APPA Home / Regulatory / Law Library Articles

Protecting Your Intellectual Property

  • Intellectual property has been described as the intangible product of creativity.  

  • There are different routes to protect your intellectual property, depending on the type of property. For some types of intellectual property, a protection is granted by registering it with the government, for others the protection is generated merely by usage. In any case, the owner of intellectual property must be vigilant in protecting their rights. Generally there are four types of intellectual property protection.  

    APPA has a web page which discusses how to protect your intellectual property at trade shows in the US and overseas.

     

  • Copyright: A copyright is granted to authors for individual works of authorship and other forms of creative expression. This includes literary, dramatic, artistic and other intellectual works both published and non-published. The copyright owner has exclusive rights to reproduce the work. Copyrights are registered with the Copyright Office of the Library of Congress.
    • Patent: A patent is a grant of a property right for things and processes that are useful in the real world. The right is for 20 years after the date on which an application is applied for. During that period the inventor may exclude others from making, using or offering for sale, or selling the invention. The legal description of the invention is the patent’s claim. The US Patent Office will review the patent and determine whether the invention is one that is new, before accepting the patent.
    • Trademark: A trademark is a word, name, symbol or design or slogan which distinguishes the products of one company from another.A trademark must be distinctive and is linked to a specific product or company. A “service mark,’’ is similar to a trademark and generally refers to the source of a service and not a producr.
      • Trademark protection is created through the use of the mark, or by filing the mark with the US Patent and Trademark Office.If you file your mark you can use the ® symbol. If not, you may still have trademark protection but must use the symbol “TM” (trademark) or “SM” (service mark).
      • Infringement:To prove that someone is infringing on your trademark, you must show that the use of a mark has created likelihood-of-confusion about the origin of the goods or services. The factors in determining likelihood of confusion are:
        • The similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
        • The similarities of the goods and services involved (including the marketing channels for the goods);
        • The strength of the mark;
        • Any evidence of actual confusion by consumers;
        • The intent of adopting its mark;
        • The physical proximity of the goods in the retail marketplace;
        • The degree of care likely to be exercised by the consumer; and
        • The likelihood of expansion of the product lines.
        • The most common form of relief granted by the courts for infringement is an injunction barring the further use of the mark. For a registered trademark, attorneys’ fees may also be awarded and rarely, monetary damages
        • Trade Secret: Trade secret protection can protect confidential information from improper appropriation and is generally enforced by the states.To consider whether something is a trade secret, courts will look at how secret the information is, the efforts made to protect the secret, the value of the information, and the amount of money or effort involved in creating the secret. The higher the cost in developing the trade secret, the more likely it will be considered a trade secret. A trade secret program, including employee confidentiality requirements to ensure this secret is protected is additional evidence of the intent to keep the information a secret.
        • A good source of information on the different types of protections offered for intellectual property can be found at The United States Patent and Trademark Office.
        • Overseas Goods That Infringe on Intellectual Property Rights: The increase in international trade has brought with it benefits, as well as a flood of pirated and counterfeit goods into the U S markets. This is a costly problem exacerbated by the fact that some countries where these goods originate are more lax than others in enforcing intellectual property rights. What options does a U S company have in enforcing their intellectual property rights?
        • File a civil action for infringement in federal Court against the manufacturers, importers and sellers of these products. The court may order the U S Marshall to seize and impound the infringing goods, or order injunctive relief preventing the sale of the goods. A problem with this method is that it may be difficult to obtain jurisdiction over all counterfeiters in a single court. Also, it may take quite some time before a permanent remedy is decided, during which time the infringers will continue benefiting from the use of the property, or set up shop in a different location.
        • International Trade Commission (ITC): The ITC is a federal agency with jurisdiction over several areas of international trade, including enforcing international property rights at the U S border and determining injury in anti-dumping and countervailing duty investigations. The ITC can direct the U S Customs and Border Patrol (CBP) to exclude entry for a product or item that infringes on intellectual property rights. CBP can seize and impound infringing goods. The ITC, under the authority of section 337 of the Trade Act of 1930 conducts formal investigations and determines whether the owner’s rights have been violated. For more information access the ITC’s Website.
        • US Customs and Border Protection (CBP): If a copyright or trademark is registered with a U S agency, the CBP can seize and impound goods pursuant to a 337 exclusion order by the ITC. First the owner of the registered copyright or trademark must record the registered mark or copyright with the CBP. Working with the ITC, if the CBP has specific knowledge of the arrival port of the infringing goods, it may seize and impound the goods. The Customs and Border Patrol Web site includes information on enforcement of intellectual property.
        • U.S. Customs and Border Protection’s Office of International Trade has developed a new online trade violation reporting system called eAllegations to provide concerned members of the public a means to confidentially report suspected trade violations to CBP.