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Trademark - Comparison with patents, designs and copyright

2004-12-12
 

While trademark law seeks to protect indications of the commercial source of products or services, patent law generally seeks to protect new and useful inventions, and registered designs law generally seeks to protect the look or appearance of a manufactured article. Trademarks, patents and designs collectively form a subset of intellectual property known as industrial property, because they are often created and used in an industrial or commercial context.

By comparison, copyright may apply to protect original literary, artistic and other creative works.

While these intellectual property concepts are separable in theory, in practice intellectual property rights may be protected by reference to more than one form of intellectual property law. For example, the particular design of a bottle may qualify for copyright protection as a nonutilitarian "sculpture", as a trademark based on its shape, or the 'trade dress' appearance of the bottle as a whole may be protectable. Titles and character names from books or movies may also be protectable as trademarks while the work as a whole may qualify for copyright protection.

Drawing these distinctions is necessary but often challenging for the courts and lawyers, especially in jurisdictions such as the United States, where patents and copyrights will eventually expire into the public domain but trademarks do not. Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and maintains their registrations with the applicable jurisdiction's trade marks office. This often involves payment of a periodic renewal fee.

As a trademark must be used in order to maintain rights in relation to that mark, a trademark can be 'abandoned' or its registration can be cancelled or revoked if the mark is not continuously used. By compariosn, patents and copyrights cannot be 'abandoned' and a patent holder or copyright owner may "sit on" his or her creation and prevent its use. Additionally, patent holders and copyright owners may not necessarily need to actively police their rights. However, a failure to bring a timely infringement suit or action against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought.



Related Topics
What is a Trademark | Trademark Definition
Registrable trademarks
Trademark Protection
Trademarks and Domain Names
International trade mark laws

 


This article is from Wikipedia.org. All text is available under the terms of the GNU Free Documentation License.