What is the difference between Patent, Trademark, and Copyright?
Patent, trademark and copyright laws protect different types of intellectual property by granting the creator/owner certain exclusive rights in the original work of the creator/owner. Patent law is used to protect the creator/author of useful things; trademark law safeguards a creator’s intellectual property by protecting phrases, words, or symbols that identify the source of a product; and copyright law is intended to protect the creator/author of creative arts.
What is a patent?
A patent is a form of intellectual property that may be available to one who “invents or discovers any new and useful process, machine, manufacture, or composition of matter [such as a chemical composition], or any new and useful improvements thereof.”
What is "new and useful" under patent law?
The subject matter of a patent is new if:
- Before its invention by the patent applicant, it was NOT:
- known or used by others in this country, or
- patented or described in a printed publication in any country
- It was NOT:
- Patented or described in a printed publication in any country more than one year prior to the application for the patent, or
- In public use or on sale in this country more than one year prior to the application for the patent
The subject matter of a patent is useful if it has a useful purpose and is operative. The following are not considered useful, and are therefore NOT patentable:
- Abstract ideas
- Law or products of nature
- Business methods
- Purely mathematical manipulations of numbers
What rights does a patent holder have?
A patent owner generally has the right to prevent others from making, using, selling or offering to sell the patented invention. This right lasts for the life of the patent, which is 20 years from the date you or someone else applied for the patent. For more information, contact the UCAR Office of General Counsel or see the patent homepage of the U.S. Patent and Trademark Office.
What is a trademark?
A trademark is a word, phrase, symbol, design, or any combination of words, phrases, symbols, or designs used to identify the source of a good. It helps consumers distinguish the source of (and often the quality of) one product from another.
What is a service mark?
A service mark serves the same purpose as a trademark, but it identifies and distinguishes the source of a service rather than the source of a product. A service mark generally appears in advertisements for a service, whereas a trademark generally appears on the product or its packaging.
What is the difference between ™ and ®?
Both marks alert the public that someone has claimed rights in a mark. However, ® may only be used if the person claiming rights in the mark has registered the mark with the U.S. Patent & Trademark Office. In contrast, ™ may be used as soon as one wishes the claim rights in a mark.
If I am claiming rights in a mark, must the mark be registered with the U.S. Patent & Trademark Office (“PTO”)?
You do not need to register your mark with the PTO to use or establish rights in a mark; however, federal registration has several advantages beyond mere use of the mark. Registration gives you priority over others to the use of the mark nationwide, and imposes constructive nationwide notice on others of your use, or intention to use, the mark nationally. This means that once you register your mark, no one in the country may use the same mark. If you do not register your mark, your rights may only extent to the geographical area in which you sell your product.
I have decided not to register my mark. Do I need to put ™ next to it every time I use it in a publication?
You do not always have to put ™ next to your mark. You should, however, use ™ the first or most prominent time you use your mark. For subsequent uses, you should treat the mark distinctively (bold, highlight, use all caps, etc.) to communicate to the consumer or reader that your mark is unique. For more information, contact the UCAR Office of General Counsel or see the trademark homepage of the U.S. Patent and Trademark Office.
What are some examples of trademarks?
Trademarks are everywhere. Some of the more famous ones are Coca-Cola®, Macintosh®, and Microsoft®.
What is copyright?
Copyright is a form of intellectual property that protects “works of original authorship” fixed in a tangible medium. The purpose of copyright is to incentivize the creation of creative works such as literary works or dramatic works.
The owner or author of a work “of original authorship” has the following rights:
- right to reproduce (copy)
- right to prepare derivative works
- right to distribute
- right to public performance
- right to public display
For more information, see 17 U.S.C. § 106; Circular 01 from the U.S. Copyright Office.
What is a derivative work?
A "derivative work" is a work that is based on or derived from a preexisting copyrighted work and in which the preexisting work is changed, condensed or embellished in some way. Under the U.S. copyright statutes, the owner of any copyrighted work has the exclusive right to control and authorize the preparation of derivative works.
How long does copyright protection last?
Generally, copyright protection lasts for the life of the author plus 70 years. If there are multiple authors, the duration of copyright is measured by the life of the last living author. Copyright protection vests initially in the author, and begins at the moment of fixation, or creation, of the work.
What are some examples of copyrightable works?
Copyrightable works include: software, books, presentations, articles, web pages, songs, etc.; however, mere facts or discoveries are not copyrightable. A “work of original authorship” that is “fixed in a tangible medium” encompasses a broad spectrum of works.
How do I copyright my work?
Copyright protection subsists in an original work once it is fixed in a tangible medium, or created. You do not have to do anything beyond creating an original work to get copyright protection. However, in order to pursue legal action against an infringer, one must first register with the copyright office.
I published a work while at UCAR. Does UCAR own the copyright, or do I?
If you created a pedagogical or scholarly work, you own the copyright for that work. See UCAR’s Intellectual Property and Technology Transfer Policy 3-2. However, UCAR does retain a non-exclusive license to use your Scholarly Work. Conversely, works created for institutional purposes are considered “works for hire,” and UCAR owns all such works for hire. Institutional works are generally works developed specifically for UCAR, at the request of UCAR.
What is a Scholarly Work?
A Scholarly Work is defined by UCAR Policy 3-2 as a scientific article published in a refereed journal, a monograph, a book, a thesis, or a similar contribution to a collective work which is authored by an employee within the scope of employment and which is not created as a result of a contractual obligation on behalf of UCAR. The Scholarly Work may add to the existing body of fundamental scientific knowledge. Although a Scholarly Work may be published on a web site, the web site itself is not a Scholarly Work. Software and any computer program codes are not included in the definition of a Scholarly Work.
I would like to include images and software developed by others on my website. Is this possible?
Yes, but before posting the copyrighted materials of any third party, be sure to have specific written permission to post the information from the third party or confirm that the use amounts to Fair Use under the copyright statute. If you need assistance in evaluating the use, contact the Office of General Counsel.
Do not post third party trademarks or government logos without specific written permission from the third party or the government agency.
What is Fair Use?
The term, “Fair Use” refers to a statutory right that may allow you to infringe another’s copyright with no penalty. The following four factors are weighed by the courts, on a case-by-case basis, to determine whether a person may successfully claim Fair Use:
- the purpose and character of the use
- The law favors use for educational purposes.
- The law disfavors use for commercial purposes.
- the nature of the copyrighted work
- The law favors use of factual material for news purposes.
- The law disfavors use of fictional material.
- the amount and substantiality of the portion used
- This factor considers both the quantity and quality of the information used. The less used, the more likely fair use will be found.
- the effect of the use on the potential market
- If your use competes with the copyright holder’s in a current or potential future market, this factor will weigh against you in the fair use analysis.
Fair Use should not be relied upon as a defense to unauthorized use of copyrighted materials unless all of the factors weigh in favor of the infringer. Please contact the Office of General Counsel for further assistance.
Even if your use is clearly Fair Use, please be sure to attribute credit to the original copyright holder.
What if I am uncertain that my intended use will be Fair Use?
Despite attempts to simplify the law of Fair Use in the Copyright Act, the four factor Fair Use analysis does not always result in a clear cut answer. The four factors merely set up a balancing test that on some occasions only the U.S. Supreme Court has been able to resolve. In the meantime, the Office of General Counsel is available to assist you in reviewing these four factors and your intended use.
What if my use does not qualify as Fair Use?
In this case, you must secure the author’s written permission to use the work. If the author provides you a license agreement to bind UCAR, the Office of General Counsel will review, negotiate, and sign the agreement.
Someone is using part of my copyrighted work, and the use does not appear to qualify as Fair Use. What should I do?
Please contact the Office of General Counsel and we can help you investigate and analyze the unauthorized use.
Where can I find more information on Fair Use?
There are many websites that describe Fair Use. Here are some helpful and credible ones:
What is the proper notice of copyright?
Written copyright notice is no longer legally required in order to protect one’s ownership interest in the material. Nevertheless, it is strongly recommended because it puts the user on notice that the work is not in the public domain.
The three elements of a copyright notice are: (1) the year of first creation/publication;
(2) the symbol © or the word copyright; and (3) the name of the copyright owner.
For UCAR, the following notices are all correct:
2002 © University Corporation for Atmospheric Research
1995-2002, Copyright University Corporation for Atmospheric Research
1998, 2000, 2002, Copyright University Corporation for Atmospheric Research
The different dates represent the first date of creation, along with dates of substantial revisions or new versions of the work. The copyright notice may contain other information, such as another creator's name or the phrase "All Rights Reserved," but the three elements previously required by the statute are basic indicia of copyright.
Where is the proper location for the copyright notice?
Any location is acceptable so long as it is adequate to give reasonable notice of the claim of copyright. It is recommended that copyright notice be included at the bottom of the first page of any hard copy document. You may also include it in the header or footer of any document in electronic format. For computer software, we recommend that copyright notice be included at the "beginning" of every source file of computer code as well as on the opening screen.
Are there standard recommendations for the distribution of copyrighted UCAR Software?
Yes, the Office of General Counsel recommends that prior to distributing UCAR software, models, etc., you secure the user's agreement to certain terms and conditions, including a warranty disclaimer, a statement of limited liability and proper attribution. A simple “point and click” license can be used to permit the downloading of software from a UCAR Web site. Depending upon the circumstances, a simple open source license, like those published by the Open Source Initiative may be adequate. See, for example, the BSD-2 Clause License. Another sample UCAR “point and click” license is available here. Please contact UCAR's Office of General Counsel for assistance in customizing license terms to meet the needs of your program.
What is the difference between open source software and software that is in the public domain?
When software is in the public domain, users have unrestricted use of the software. While the phrase “open source code” denotes that the creator is making the source code available to all requestors but under a license that sets forth the parameters of its use. Therefore, “open source” software is still licensed to a user under the terms and conditions of the specific open source license arrangement. UCAR supports several open source licenses, from its own on-line point and click license to the GPL and LGPL open source licenses. Ownership of the source code is still asserted under an open source license. Some organizations charge a fee for open source licenses.
What is the Public Domain?
The term “public domain,” describes the status of an invention, commercial symbol, or any other creative work that is not protected by a form of intellectual property. If a work is in the “public domain” that means that another can freely copy a work without permission or attribution to the original creator(s) or inventor(s). A creator or inventor may choose to dedicate the work to the public domain, or it may “fall” into the public domain if the owner of the work does not maintain statutory protection for the work under the applicable federal law: patent, copyright or trademark.
Who owns works in the public domain?
No one owns a work in the public domain. If a work is truly in the public domain, there are no ownership rights. An example of this within UCAR is MM5. MM5 Notice
How is a work put into the public domain?
If a creator or inventor wants to dedicate something to the public domain, several steps need to be followed. See the chart Intellectual Property Protection for a decision tree that sets forth these steps. Here’s an example that involves software. A software engineer at UCAR creates a new tool that enhances some existing software. The software engineer wants to put this software tool in the public domain. The software engineer must first make sure that she has not incorporated any third party software, or would infringe or violate third party rights by putting the software in the public domain. Next, the software engineer must work with management to make sure that no sponsorship or funding restrictions exist with regard to the dissemination or protection of the software. Finally, institutional guidelines and technology transfer issues should be considered prior to the software being put in the public domain. Once a work is put in the public domain, no one can limit its use by copyright, patent, or any other statutory protection.
If I do not see a copyright or proprietary notice, can I assume that something is in the public domain and can be freely taken?
The short answer is no, although it depends. Here’s why. Because a copyright notice is no longer required for the creator of an image, text, software code, or anything else to be protected under the copyright statute, no one can assume that a work without notice is freely available or in the public domain. There are certain works that are automatically in the public domain such as U.S. government works, judicial opinions, legislative enactments and other official documents and forms. The person who enhanced the public domain work, however, owns the enhancement. For example, someone may take the freely available government tax forms and provide advice or instructions on completing these forms and sell such advice or instructions. This is an enhancement to the public domain government forms.
How can I control my work if I put it in the public domain?
You cannot control your work once it is in the public domain. Your work can be changed, exploited and someone else can even take credit for it. If you put a work in the public domain you give up all ownership rights and the right to control the work. If you are interested in making your work “freely” available, yet maintain quality control over it, you should “license” the work for use by others. This means you can control its use, all enhancements or modifications, and receive professional credit for the work, yet still make the work widely available to all users.