Introduction
An intellectual property right is a legal concept that confers rights to owners and creators of the work, for their intellectual creativity. Such rights can be granted for areas related to literature, music, invention, etc, which are used in business practices.
In general, the intellectual property law offers exclusionary rights to the creator or inventor against any misappropriation or use of work without his/her prior knowledge. Intellectual property law establishes equilibrium by granting rights for the limited duration of time.
When you own intellectual property, you own certain intangible rights in creations, methods; every nation has framed its own intellectual property laws. But on an international level, it governed by the World Intellectual Property Organization (WIPO).[1]
The Paris Convention for the Protection of Industrial Property in 1883 and the ‘Berne Convention for the Protection of Literary and Artistic Works’ in 1886 were the first conventions that recognized the importance of safeguarding intellectual property.
Protection of Trademark
Trademarks protect commercial branding, including names, logos, slogans, and trade dress (the look and feel of a product or packaging). Copyrights protect original expressions of creative works, such as text, images, photographs, movies, books, and music. Patents protect inventions, devices, machinery, methods, designs, and plants. There three different types of patents granted — utility patents, design patents, and plant patents. Approximately 92% of patents granted utility, 8% designs, and 0.3% planted. Interstate use of trademarks is governed of federal law, namely, the United States Trademark Act (also called the Lanham Act).[2]
In the United States, trademarks generally protected from their date of first public use. Registration of a mark not required to secure protection for a mark, although it offers numerous advantages, such as allowing the registrant to bring an action in federal court for infringement of the mark. Applications for federal registration of trademarks made with the PTO.[3] Registration is a fairly lengthy process, generally taking anywhere from twelve to twenty-four months or even longer.
Different laws govern different types of intellectual property like:
- Lanham Act
- North American Free Trade Agreement
- Madrid Protocol
- Trade-related aspects of Intellectual Property Rights
- Trademark Law Treaty Implementation Act
- Federal Trademark Dilution Act
- Anticybersquatting Consumer Protection Act.
Due to the number of ways the various types of intellectual property are protected, there are different methods of determining whether intellectual property violations exist.
Trademark infringement[4] exists if there is a likelihood of confusion by the consuming public. Courts look at a number of factors to determine the potential for the likelihood of confusion, including the target market, as well as the sophistication of likely buyers. Copyright infringement occurs when a copyrighted work is used or publicly displayed without the permission of the copyright owner. In order to demonstrate copyright infringement, a plaintiff will need to show access to the work as well as copying. Patent infringement occurs when someone makes, uses, offers to sell, or sells a product or process that patented. Patent infringement can occur whether or not the infringer knew of the existence of the patented invention.
Trade secret infringement, also known as misappropriation, happens if someone:
- Improperly acquires a trade secret,
- Improperly discloses or uses a trade secret without permission of the rights holder, or
- Has reason to know that the knowledge was acquired through mistake or accident, and uses it anyway.
Trademark intellectual property rights include the right to prevent others from using your trademark or a trademark that is confusingly similar to yours. Federal registration is not necessary in order to have trademark rights. Common law trademark rights allow a brand owner to prevent others from using a confusingly similar trademark in a certain geographic area. However, a registered trademark owner can prevent usage of the trademark nationwide, which offers significantly more protection to the rights holder. Violation of trademark rights occurs when an infringer utilizes a trademark that could cause a likelihood of confusion by the consuming public. Trademark infringement could be deliberate, such as deliberate counterfeits meant to look like the original product. This type of infringement could also be unintentional if there is no awareness of the earlier branding.
Conclusion
Trademark rights differ from other intellectual property rights in that a trademark owner must actively police third party use of the trademarks through sending trademark cease and desist letters or filing trademark litigation to prevent unauthorized use. Failure to do so could result in a loss of rights, whereby brand owners can no longer prevent others from utilizing their previously protected trademarks.
[1] WIPO is a subsidiary organization of the United Nations.
[2] Primary federal trademark statute of law in the United States.
[3] United States Patent and Trademark Office
[4] An illegitimate act of copying or misuse the already registered trademark.
