Protecting the Product Idea. In the past few decades, our society has added information and in-

In the past few decades, our society has added information and in-

novation to the formula for producing wealth. Now, knowledge is con-

sidered every bit as much a factor in making money as labour, capital,

land, plant, and equipment. Moreover, ideas are important “assets” of a

company. Consequently, the law affords ideas protection.

Any tangible medium of expression, such as writings, sound record-

ings, motion pictures, sculptures, notated choreographic works are copy-

rightable. Copyrights protect the creators of literary, dramatic, musical,

artistic, and other intellectual works. Copyright law covers reproduction

by photocopying, video tape, and magnetic storage.

To obtain Copyright protection, the word copyright (or its abbrevia-

tion) or the symbol must be on copies along with the author’s name and

the year of copyright.

The Copyright Office will issue a copyright to the creator or to whom-

ever the creator has granted the right to reproduce the work. (A book, for

example, may be copyrighted by the author or the publisher.) Copyrights

issued after 1977 are valid for the lifetime of the creator plus 50 years.

Copyrights issued prior to 1977 are good for 75 years.

Technically, copyright protection exists from the moment you create

the material. When you distribute a work, place on the copies a notice

that includes the term “copyright” or an abbreviation, the name of the

author or creator, and the year of publication or production – for ex-

ample, “Copyright 1986 Jane Doe.”

Choosing a new name for a product is no easy task since there are

about 1 million brand names in the US alone. Marketing impact is not

the only consideration in the naming of a product. The scheme of laws

surrounding product names and symbols must be consulted before se-

lecting a new name.

A trademark is any word, name, symbol, or device used to distinguish

the product of one manufacturer from those made by others. A service

mark is the same thing for services. McDonald’s golden arches are one

of the most visible of modern trademarks. Brand names can also be reg-

istered as trademarks. Examples are Exxon, Polaroid, and Chevrolet. If

properly registered and renewed every 20 years, a trademark generally

belongs to its owner forever. Among the exceptions are popular brand

names that have become generic terms, meaning that they describe a

whole class of products. A brand-name trademark can become a generic

term if the trademark has been allowed to expire, if it has been incor-

rectly used by its owner. Trademarks and service marks comprise most of

the marks protected under state and federal law.

A collective mark is a trademark or service mark used by members

of a collective group, such as a union or trade association, to identify

that its goods or services are produced by members of the group. Many

realtors, for example, display a symbol reading “MLS” indicating that

they are members of Multiple Listing Service, a real estate cooperative.

A certification mark is a mark that attests to a specified quality, material,

or origin from a certain region. The symbol “UL,” for example, certi-

fies that a product is in compliance with the standards of Underwriters’

Laboratories, Inc.

A patent protects the invention or discovery of a new and useful pro-

cess, an article of manufacture, a machine, a chemical substance, or

an improvement on any of these. Issued by the Patent Office, a patent

grants the owner the right to exclude others from making, using, or selling

the invention for 17 years. After that time, the patent becomes available

for common use. On the one hand, patent law guarantees the origina-

tor the right to use the discovery exclusively for a relatively long period

of time, thus encouraging people to devise new machines, gadgets, and

processes. On the other hand, it also ensures that rights to the new item

will be released eventually. Other enterprises may be able to make use of

it more creatively than its originator. Not all inventions are patentable.

The Patent Act empowers the federal government to grant three general

types of patents: utility patents, design patents, and plant patents.

One of the best variant of protecting product ideas is the law of trade

secrets.

As the term indicates, the subject of a trade secret must be secret—

not generally known to the public or to other competitors in the trade

or business. It may or may not be patentable. Novelty, as used in pat-

ent law, is not required. Unlike patents, which confer a right to exclude

all others from using the invention, trade secrets are protected against

unauthorized use only if the secret is obtained through a breach of a

confidential relationship or other improper means. Thus, an employer

who confides the secret to key employees under an express or implied

restriction against disclosure or use would be protected if the employees

subsequently used the secret for personal use or disclosed it to a compet-

itor. In addition, the holder of a trade secret is protected against knowl-

edge gained by improper means such as physical force, burglary, theft,

wiretapping, or other forms of industrial espionage. The trade secret

holder, accordingly, is not protected against discovery of the secret by

honest means, independent invention, or reverse engineering (analyzing

the product embodying the secret to determine how it was developed

or manufactured). Thus, tort liability is imposed not for using a trade

secret, but rather for employing improper means to procure it. A patent

provides in some ways more, and in other ways less, protection than a

trade secret. For example, trade secrets may last indefinitely and are not

limited to patentable inventions. In contrast, patent law protects inven-

tions that are not secret even against persons who independently and

honestly discover the patented product or process.

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