Patents vs. trademarks

A friend of mine asked me a great question today: what’s the different between patents and trademarks?

Patents and trademarks are similar in that both are considered to be intellectual property (along with copyrights and trade secrets). Intellectual property, generally speaking, is a right the government grants to you in exchange for registration of an intangible property right. Intellectual property rights permit you to exclude others from using your intellectual property without your consent. Intellectual property is considered personal property, like a car, that can be sold or transferred through an estate.

There are distinct differences between the two. A patent deals with the invention of an apparatus or process. For a few examples from my practice, you could patent a new fishing yo-yo or a new boat pontoon, or you could patent a process for folding sheet metal or using computer software to manipulate data. A quick way to differentiate patents is to remember that they deal with manufacturing, either a product itself or a way to make the product. Patent rights arise ONLY from registration, and they expire 20 years after filing.

A trademark is a symbol that consumers use to identify the source of a product. So, consumers recognize the term COKE as a product made by a particular cola manufacturer. A quick way to differentiate trademarks is to remember that they deal with brands and marketing. Since trademark rights deal with consumer recognition, they necessarily arise ONLY from prior use, and they never expire as long as use continues. Registration just confers broader geographical rights as well as procedural and evidentiary benefits in legal proceedings.

Any given product can be covered by different types of intellectual property. For instance, a pontoon boat could have patented pontoons and a patented deck and still be protected by a  trademarked brand name.

Any business with valuable ideas, products, or brands should adopt a policy on how to secure and enforce intellectual property rights. Let us know if we can help.

Factors in teen driving crashes

Traffic crashes account for one-quarter of all teen deaths, according to a recent report co-authored by the Children’s Hospital of Philadelphia. The four factors that most influence teen crashes are failure to use seat belts, speeding, alcohol use, and distracted driving. The report concludes that most teen driving crashes are attributable to inexeperience, and advocates for allowing teens to gain experience under lower-risk conditions, such as limiting the number of passengers in the teen’s car.

For other recommendations for ensuring your teen’s safety behind the wheel, check out the seven suggestions for parents we posted earlier. If you’ve got any other recommendations for keeping teens safe, we’d be happy to post them here.

Growth ticks up in Clark County

According to the report from the January meeting of the ABC, several convenience stores in Clark County received off-premises beer permits from the ABC last week. KARK reported that one Arkadelphia business already hired a new employee to service new customers, and KATV reported that one store sold 550 cases of beer the first day. That’s over $10,000 in single-day gross sales a local business didn’t have this time last week. Over the course of a year, our local 2% sales tax will generate in the neighborhood of $60,000 in revenue from that store alone. These sales represent real growth, since this money was traveling outside our county until last week.

Talk about teen driver safety this holiday season

Teens are much more likely to be involved in car crashses than older drivers. As reported here, there are seven things parents can do to keep their teens safe this holiday season. The suggestions include:

1. Sit with your son or daughter before and after he or she earns a driver’s permit or license. Discuss the dangers involved, and have a frank conversation about the consequences-those you will impose and those a judge will impose.

2. Get in the car and observe your child’s driving. The CDC recommends providing 30 to 50 hours of supervised driving practice forat least six months after a teen gets his or her license. Teach your young driver how to handle a vehicle in different weather conditions and under changing traffic circumstances.

3. Sign a written agreement that details all the rights and privileges, as well as consequences, your teen will be subject to in exchange for the car keys. The CDC has a useful template on its website.

4. Consider prohibiting nighttime driving, or at least set a driving curfew of 10 p.m. at the latest.

5. Restrict the number of passengers to one or none.

6. Take away the keys if you even suspect your child has been drinking and driving.

7. Take away the cell phone if your child has been calling or texting while driving.

Happy and safe holiday greetings from the Chaney Law Firm!

IP litigation humor

Probably my favorite thing about being an intellectual property lawyer is that I’ve actually heard of most of the things I read about in cases. Off the top of my head, there are important, recent patent cases about Microsoft’s Word product and eBay’s Buy-It-Now feature. Famous trademark cases involve the Burger King franchise vs. a Burger King mom-and-pop shop on the East Coast, McDonald’s famous name, John Deere’s green tractors, and Pink Panther insulation. The Supreme Court once heard a copyright case involving a profane 2 Live Crew parody of a Roy Orbison’s “Oh, Pretty Woman.”

So, I had to laugh this morning when I saw that a patent and trademark lawsuit was filed earlier this week over the Shake Weight®, which has been mercilessly parodied on Saturday Night Live, South Park, The Daily Show, and others. But, while the subject matter may be funny, these IP cases are big business. The Shake Weight® owner is trying to protect a $6M investment in its advertising, which is being poached upon by competitors.

Our IP laws permit innovators to insulate themselves from certain types of competition. Patents protect implementations of new ideas; design patents protect product configurations; trademarks protect brands and other indicators of source; and copyrights protect artistic expressions. These laws are important because they represent the only way for individuals and businesses to protect the investment into research and development, production, advertising, and other business-related costs. The primary purpose of the IP laws is to allow innovators to recoup their investment into bringing new products to market. Yes, even the Shake Weight®.