Back to basics: Do you need copyright, patent or trademark protection?

It is common for non-lawyers to confuse the subject matter of copyrights, patents and trademarks. The Patent and Copyright Clause of the U.S. Constitution grants authors and inventors protection in their works and inventions. The Commerce Clause grants protection to those who own source identifying marks used in commerce. Today, the distinction is of no great consequence. Copyrights, patents and trademarks all constitute valid intellectual property.

Copyright protection extends to original works of authorship in any tangible medium of expression, including:

• literary works,
• musical works,
• dramatic works,
• choreographic works,
• pictorial works,
• graphic works,
• sculptural works,
• motion pictures and other audiovisual works,
• sound recordings, and
• architectural works.

Copyright protection cannot extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of how it is described. Basically, copyrights protect the embodiment of ideas or their expression, but not the ideas themselves.

Patent protection extends to new or improved, useful and non-obvious processes, machines, compositions of matter or articles of manufacture. I am not licensed to discuss patents in great depth, as I am not a patent attorney. Patents are much more technical than copyrights and trademarks, and require special licensing. Patents involve a written specification and claims. The latter describes the metes and bounds of the patent and exactly what is protected.

Trademark protection basically extends to anything that identifies a mark owner's goods or services in commerce. Typically, a trademark is a name, word, phrase, symbol, color or design. It is important to emphasize that trademarks must be used "in commerce." If you are not using a mark in commerce, as in directly connected to a good or service for sale, you cannot gain trademark protection. You can file an intent-to-use application, but eventually there must be a bona fide use in commerce. A token use in commerce simply to reserve rights is insufficient. As long as a trademark is used in commerce, you can gain trademark protection if it is source identifying. Source identification of a mark is established through inherent distinctiveness or secondary meaning.