The difference between patents, trademarks, and copyrights

Guest post by Samar Shah of Shah IP Law, PLLC, a patent strategy law firm in San Antonio.

Startup clients, who are just getting their businesses off the ground, inherently understand the value in protecting their intellectual property. They are rightfully concerned that their nascent venture may be easily replicated by someone else, or that a larger competitor will apply its significant resources to out-execute on the startup’s original idea.

Although startups immediately grasp the value of IP protection, they often flounder at selecting the best option for protecting their business ventures. In this post, we discus some of the most common ways that startups and more established businesses protect their intellectual property, including patents, trademarks, and copyrights.

1.     Patents protect products, processes, and chemical compositions

Patents protect (1) products, processes, and chemical compositions that are (2) novel and non-obvious. Your idea must meet both of these requirements in order to be patent eligible. Examples of patent eligible inventions include semiconductors, chemical fertilizers, and processes for manipulating genetic traits in mice, etc.

In order to figure out whether your idea is sufficiently novel and non-obvious, you must look at your invention from the perspective of a person who is ordinarily skilled in your field or technology. This perspective shift often requires us to perform a “prior art search” to identify pre-existing alternative solutions to your inventive idea, and identify the reasons why an ordinarily skilled artisan would not have come-up with the same solution as the inventive idea.

Unlike some of the other forms of protection discussed here, patents must be filed—and granted—by the United States Patent Office in order to confer protection. The standard length of a patent term is 20 years.

2.     Trademarks protect business names and logos

Trademarks protect (1) word, phrase, symbol, design, color, sound, scent, or any combination thereof that (2) are distinctive by identifying and distinguishing products or services.

The distinctiveness of trademarks is measured along a spectrum, of increasing distinctiveness: (1) generic, (2) merely descriptive, (3) suggestive, (4) arbitrary, and (5) fanciful. Generic terms, such as “pizza,” or “car wash” receive little protection, but arbitrary terms (which include the use of generic terms applied to an unrelated product), such as “Apple” for computing devices, and fanciful terms (which include the use of newly invented words), such as “Exxon” or “Google” receive a wider scope of protection.

Trademark rights are created through use, not registration. Standard use protects the owner in the geographic area where the mark is used, in the channels of trade in which the products or services are offered or sold, and for those goods and services with which the mark is associated. Unlike patents, which have a limited term, trademarks can last for as long as they are properly maintained.

3.     Copyrights protect original creative works

Copyrights protect (1) original works of authorship that are (2) fixed into a “tangible form.” Works of authorship that are typically protected include literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In order for a work of authorship to be original, it must not be derivative or be copied from someone else. And a fixed “tangible form” refers to a medium, such as a book, a photo, music sheet, or a recorded song. A work must meet both of these requirements in order to receive copyright protection.

A copyright is created as soon as you create an original work and fix it into a tangible medium. However, in order to better protect your work and prevent others from using it, we typically recommend that you register your copyright.

The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

4.     Conclusion

In some cases, a business may be protectible by all three of these options. The selection of an appropriate IP protection strategy for your business comes down to an analysis of the various options discussed here along with a proper understanding of the unique value proposition of your business.

We recommend that you contact an attorney to learn more about your options. The materials in this post are made available for informational purposes only and do not constitute legal advice. Moreover, the receipt of information contained in this post does not create an attorney-client relationship.

Legal Issues When Dealing with Dementia

Potential Client: “Mr. Garza, I’d you to help me draft a deed for my mother. She wants to give me her house.”

Me: “OK, can I speak with your mother?”

Potential Client: “Well, she sometimes zones out and is confused, but she knows what she’s doing–most days.”

Dementia (and other neurological diseases) commonly confront attorneys when we are asked to handle Elder Law matters and related legal issues.

Here’s a link to a brief but excellent pamphlet relating to Dementia, and how to address care for aging loved ones. It covers Guardianships, Estate Planning, Disability Planning, Long Term Care Options, and Hospice in the event that Dementia or another neurological disease poses a challenge to your family member or friend.

http://www.texasbar.com/Content/NavigationMenu/ForThePublic/FreeLegalInformation/ElderLaw/DementiaGuide.pdf

Stop Debt Collector Harrassment

Financial hardships are stressful.  Whether it is because of credit card debt, student loans, mortgages, or past-due service bills, harassing phone calls from debt collectors can add a considerable amount to your level of stress.  Debt collector harassment has led to numerous personal bankruptcies, marital instabilities, loss of jobs, and invasions of privacy.

Although persistent attempts to collect from you is legal, debt collector harassment is illegal and will not be tolerated by the Federal Trade Commission.  Most debt collectors realize this and are good about obeying the law.  Sometimes, however, debt collectors may cross the line and engage in debt collector harassment.  Fortunately, there are legal actions you can take to stop this harassment.

The Fair Debt Collection Practices Act (FDCPA) was created for the sole purpose of protecting consumers from debt collector harassment by prohibiting certain debt collector behavior.  It prohibits debt collectors employed by third party collection agencies from engaging in any form of debt collector harassment, but the Act’s provisions do not cover collectors hired by the original creditors themselves.

Among other things, the FDCPA prohibits:

  • Calling at unreasonable hours;
  • Failing to cease communication upon request;
  • Repeatedly and continuously calling;
  • Communicating with consumers after they have filed bankruptcy;
  • Communicating with consumers at their place of employment;
  • Communicating with consumers represented by an attorney;
  • Communicating with consumers after request for validation; and
  • Misrepresenting or deceiving.

For more information, see this link: http://bankruptcy.findlaw.com/bankruptcy/more-bankruptcy-topics/bankruptcy_help_stop_debt_harassment.html

How To Sue in a Small Claims Court

If you are thinking of suing a person or business when you’ve tried other ways to resolve a problem, you should always consider going to Small Claims Court before hiring a lawyer.

There is a limit to the amount ($10,000 in Texas) and the types of claims that you can bring.  Also, a Small Claims Court can only award money damages (aside from evictions, it cannot force someone to perform, or issue an injunction prohibiting someone from doing something).  But Small Claims Courts are informal, effective, and a lot less expensive than attorneys.

Ensure that your claim is LESS than $10,000 (if not, the case will be dismissed).  Also, research the legal name and/or assumed name of a business to make sure that you are suing the right party.

The State Bar of Texas publishes an excellent pamphlet (PDF) on everything you need to know about handling a case in Small Claims Court.  Here is the link:

http://www.texasbar.com/Content/NavigationMenu/ForThePublic/FreeLegalInformation/OurLegalSystem/HowtoSueinSmallClaimsCourt.pdf

I guess “Arbitrator Judy” and the “The People’s Arbitrations” didn’t sell with the corporate sponsors.  Good Luck.

Texas Durable Power of Attorney and Form

A financial power of attorney is a legal instrument that gives another person (called an attorney-in-fact) the authority to make personal and financial decisions on your behalf.  A financial power of attorney can be as broad, or as specific as you want it to be.  For example, a power of attorney can authorize someone to make banking, tax, litigation, and/or financial planning decisions on your behalf.  A financial power of attorney does not, however, encompass medical decisions–a separate medical power of attorney is needed for that purpose.

You can make the financial power of attorney effective immediately after it is signed, or make it effective in the event of your incapacity (the inability to make decisions on your own behalf).

Although the State of Texas has promulgated a standard form to be used (see the link below), you should consult with an attorney when preparing a financial power of attorney to ensure that it accurately reflects your needs and wishes.

http://www.statutes.legis.state.tx.us/Docs/PB/htm/PB.XII.htm#490

http://sabusinessattorney.com/blog1/2011/09/30/texas-durable-power-of-attorney-and-form/