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Embed code for: CHART OF RELATIONSHIPS BETWEEN PATENTS
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PATENTS, TRADEMARKS, COPYRIGHTS, AND TRADE SECRETS COMPARISON Type of Protection Utility Patent Design Patent Copyright Trademarks Trade Secrets Subject Matter Functional features of process, machine, manufactured item, or composition of matter. 35 U.S.C. 101 Ornamental designs for article of manufacture 35 U.S.C. 171 Works fixed in tangible medium of expression. Includes literary, musical, pictorial, architectural, sculptural, and motion picture works 17 U.S.C. 102 Words, names, symbols, devices, sounds, smells Non-functional trade dress 15 USC 1127 Formulae, processes, products, software, plans, designs, specs, pricing, devices, R&D information, business information. Criteria for Protection Useful; New and "nonobvious" 35 U.S.C. 101, 102, 103 Ornamental; New and "nonobvious" 35 U.S.C. 102, 103 Originality; Authorship; Non- functional aspects 17 U.S.C. 102 Used to identify and distinguish goods or services/distinctive 15 USC 1127 Anything advantageous in business and secret. How obtain Rights? U.S. Patent & Trademark Office. U.S. Patent & Trademark Office. Automatic upon creation in tangible medium; notice and registration help monetary recovery. Common Law: Adoption and Use (secondary meaning can be required) Federal or State Registration: Application and compliance with statutes. Obtain legitimately. State law. Term 20 years from earliest non- provisional priority date (filing date). 35 USC 154 14 years from date of Federal Grant. 35 USC 173 Life of author plus 70 years, or 95 year from publication for works for hire. 17 U.S.C. 302 As long as properly used; Federal registration lasts 10 years (if formalities complied with). Renewable for 10- year periods. 15 USC 1059 As long as secret. What Infringes? Making, using, selling, or importing devices embodying the claimed structure or using claimed process 35 USC 271 Making, using, selling, or importing articles embodying the claimed invention. Do designs look alike to eye of ordinary observer? 1) Substantial copying 2) Illegal copying i) access ii) substantial similarity Likelihood of confusion, mistake or deception 15 USC 1114 Improperly obtain secret or improperly use it or disclose it. Disclosure Requirements Best mode 35 U.S.C. 112 Best mode 35 U.S.C. 112 None; Deposit on Publication Must use Cannot disclose. Cost High, generally more than $10,000. Moderate Negligible Low Cost of maintaining secret Continuing Duties None None None Policing Keep Secret Date protection commences Upon issuance: 2-5 years from filing. Upon issuance: 2-5 years from filling. When fixed in tangible medium. First use; Filing of U.S. intent to use application First use Rights against independent discovery or creation Complete Complete None Good faith not defense, except limited None Civil remedies Damages for injury, attorney fees if exceptional; damages can be increased; injunction. 35 USC 283, 284, 285 Damages for injury or defendant's profit; attorney fees if exceptional; damages can be increased; injunction. 35 USC 283, 285; 35 USC 289 Damages, statutory damages, attorney fees, seizure, injunction. 17 USC 502-4 Defendant's profits; plaintiff's damages, costs; exceptional case gets attorney fees and increased damages; injunction; seizure for counterfeit; punitive damages if also unfair competition. 15 USC 1116, 1117 Damages, punitive damages, attorney fees, injunction. WARNING: This chart greatly simplifies the applicable law and is for instructional purposes only. Consult the relevant statutes, case law, and treatises for a thorough analysis. Adapted from a chart by J. Thomas McCarthy, Trademarks and Unfair Competition, 2nd Edition.