Wendel Rosen's Intellectual Property Blog

IP Basics: Copyrights, Trademarks and Trade Secrets, Oh My!

 

[This post is part 1 of a 3 part IP Basics Series]

When discussing intellectual property (IP) it is sometimes easy to confuse the blurred line between the various species of IP such as copyrights, trademarks and trade secrets. But with a little background and understanding of the different works and types of information that are protected, the distinction between copyrights, trademarks and trade secrets becomes clearer.

A copyright is, essentially, the bundle of rights that an author has in an original creative work of expression. Those rights include the right to control the duplication of the work and to sell it for profit. A common type of work protected by copyright is a written work such as a novel. However, copyright can protect other types of works as well, such as paintings, movies, music, sculpture, works of architecture and design.

Among the important and fundamental limitations on the scope of copyright protection is the principal that a copyright protects the expression of a work and not abstract ideas. A copyright differs from other IP protections in that regard (compare this to patents and trade secrets which may protect original ideas and methods). Thus, copyright will protect the words of my written novel, but generally will not protect the abstract ideas or themes expressed in the story. For example, I could not put my name as author on the Harry Potter series of books and attempt to sell the books to the public. I could, however, write my own novel about an orphaned  child wizard who overcomes his evil arch nemesis. Of course, there are nuances and limitations that are beyond the scope of this post, such as the right to control “derivative works” and the point at which a knock-off character (say, my orphaned child wizard) might be so similar to the original that it infringes upon rights in a copyrightable character in a work. For example, Comedy Central recently attempted to prevent Stephen Colbert from bringing his Stephen Colbert character to the CBS The Late Show.

A trademark protects a “mark,” which may be a word, name or symbol, used by a particular proprietor to identify and distinguish the goods of that proprietor. See Cal. Bus. & Prof. Code § 14202(a). A trademark serves as identifier of the source of goods, as against competing products, and functions as a means of preserving a product’s reputation in the market place. Sun-Maid Raisin Growers of California v. Mosesian (1927) 84 Cal.App. 485, 494.  Examples of trademarks are the “Coca-Cola” name or a logo like the familiar Starbucks icon.

A “trade name” is a related but distinct concept. It connotes the identifier of a particular business, including what is often described as the goodwill—that is, the reputation built up in the marketplace—associated with the “good name” of the business. See Cal. Bus. & Prof. Code § 14202(d) (“‘Trade name’ means any name used by a person to identify a business or vocation of that person.”).

Thus, a copyright and a trademark protect distinct types of intellectual property. Copyright, simply put, protects original works of expression from copying for a limited period of time while trademarks protect expressions used to identify the source of goods in the marketplace and can last in perpetuity. Phoenix Entertainment Partners, LLC v. Rumsey (7th Cir. 2016) 829 F.3d 817, 825. Sometimes a company logo can be protected both by copyright and trademark law.

In the next post, we will consider the concepts of “trade dress” and “trade secrets.”

4 Responses to “IP Basics: Copyrights, Trademarks and Trade Secrets, Oh My!”

  1. Gerry

    Living plants can be protected with patents, their names with trademarks, etc., but breeders also use a form of protection they term a “flowering only license”, which prohibits their customer nurseries from propagating plants sold to them, though the plants are not patented. I’d like to know whether such licenses apply to retail customers who may not be aware of the agreement, but may buy them with tags that say propagation is prohibited.

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  2. Leonard E. Marquez

    Thank you for the comment. You certainly raise an interesting and cutting edge issue about these overlapping sources of IP protection as relates to this particular industry. We cannot comment on specific matters or give legal advice in response to comments posted on the blog. For general informational purposes, licenses are usually personal to the licensee and one would not expect unaffiliated third buyers to somehow be bound by the terms of the license between the breeders and the nurseries. That doesn’t mean that the retail buyers would not otherwise be bound by any more general IP rights that the breeder might have to prevent the unauthorized propagation as you note is apparently stated on the retail tags. Still, the extent of such rights would depend on the specific facts of the situation. This post does not constitute legal advice as to your particular circumstances and does not establish an attorney-client relationship.

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