The January program meeting featured The Lawyer Known Only As Mark, who pulled an impressive number of folders from a swollen briefcase and proceeded to use almost none of them as he took us on a two-hour helicopter tour over the world of Intellectual Property.
Here are some highlight definitions for those of you who missed this session.
Trademarks
A trademark protects something (1) sold for money (2) in the marketplace.
“Trade” means what you think it means – I transfer a bicycle to you and you transfer $ to me. If I give you a bicycle as a promotional item, that generates lots of goodwill but no trademark rights. So, when does a mark becomes a trademark recognized by the law? When the first sale occurs.
“Mark” = marketplace. If a competitor sells a similar product under a name similar to your name, then the marketplace would be confused. It earlier thought that such wares came from you and now it appears that it bought wares from your competitor thinking they came from you. The law does not permit this.
90% of your legal questions on trademarks can be answered by asking what the marketplace thinks. This is unusual for a legal issue (and draws back the curtain on the Wizard).
Copyrights
A copyright literally gives you the right to copy. Copyright protects the literary or artistic expression of an idea. An author or artist also maintains moral rights over the use of their idea, even if they sell it to a third party and no longer maintain the copyright. These rights include integrity, which prevents the new owner from degrading your original intent, and paternity, which protects your right to be identified as the originator of the work.
Patents
A patent protects the functional essence of a technical (i.e. not artistic) method or idea, which in many cases is embodied in a machine or other “thing.” To write a strong patent, make sure you generalize as far as possible.
The method is: Step 1. Stop eating on the flat ground. Step 2. Create a flat surface off the ground. Step 3. Eat on that flat surface. Step 2 is embodied in something that marketing people call “a table”. By defining your patent as any flat surface off the ground, regardless of the material type or method of maintaining height, you are doing a better job of protecting your technical method. Now your patent covers three-legged tables, four-legged tables, tables made of plastic, tables suspended from trees, etc.
A trade secret is similar to a patent but it is kept secret, whereas a patent is published and made available to everyone.
Industrial Design
An industrial design in Canada allows you to register the ornamental form of something. The same protection in the US is called a design patent, and is registered as a picture (no words). In principle, a water fountain design (i.e. the jets of water making a 3-D “picture” of water in the air) is the subject of an ID registration. So is a Kahlua bottle. But a septic tank (normally underground, and not seen) would not be a suitable subject of an ID design.
I know that Mark is reaching for the aspirin as he reads this. He would want me to point out that these are extremely broad generalizations and are best taken with a cellar of salt. He would also want me to point out that any or all of these definitions can be subjugated to a contract, and that even tightly written contracts can be argued about indefinitely.
Mark left us with some wise advice regarding NDAs (Non-Disclosure Agreements). Often people forming partnerships “trade” NDAs and sign them because it seems like the polite thing to do. But always consider what you need to know. If a partner has information that needs to be kept under NDA and YOU don’t need to know it, then don’t sign! There is no way to unlearn information you shouldn’t have had in the first place.
