Intellectual Property Basics: A Brief Overview
By Nancy L. McCullough, Esq.
United States intellectual property is generally divided into the following four main categories: Copyrights, Trademarks, Patents, and Trade Secrets. Each of these categories provide specific tools that an author, artist, designer, musician, software developer or a company or small business can use to protect valuable properties.
In order to better understand which type of protection applies to which type of properties, as examples, please consider the following with respect to Coca-Cola:
1. Copyright. Protects original, creative/artistic expressions of non-functional ideas (such as print advertisements for Coke with actors drinking Coke, the “Always Coca-Cola” theme song from TV and radio ads, the written scripts and advertising copy for such ads, the company’s employee training manuals, and its corporate annual report books).
2. Trademarks. A logo, mark, brand name, slogan or symbol (or more than one of these in combination) used to differentiate products or services by their source (Coke logo with cursive script in white on red/red on white, and its many variations, like Diet Coke, Coke Zero).
A subset of this protection is Trade Dress protection, which (similar to a design patent) can protect packaging and product designs itself (Coke’s original bottle shape is also protected by trade dress), and colors, shapes, or other features heavily associated with a particular source as applied to either the product itself or its packaging (cursive script, red on white or white on red lettering elements are heavily associated with Coca-cola’s products). (Coca-cola has filed numerous trade dress-based claims against rival Pepsi globally for its soda or juice bottles that Coca-cola thought were confusingly similar to its own by shape or size of bottle, color of the bottle cap – note that the “Coca-cola” logo does need to appear on the disputed product for a trade dress claim.)
3. Patents. Two types exists:
Utility Patents protect new, unique and nonobvious utilitarian inventions, processes, business methods, formulas, or codes (examples: Coca-cola’s patent for “systems and methods for a vending network”, which is a mechanism plus security features enabling its vending machines to accept credit/debit card payments, and could include the Coke formula itself, but see Trade Secret); and
Design Patents protects new unique, and non-obvious ornamental, visual aspects of design and packaging elements (the distinctive shape of Coca-cola’s original 1915 curved bottles with ridges, the ornamentation (decorative elements) of several racks/point of purchase displays used for its bottles).
4. Trade Secrets. Protects secret information, processes, devices, formula or business know-how that is proprietary to a company and usually imparts an advantage over its competitors, and must be kept confidential by the business in order to receive legal protection (by nondisclosure agreements, limits on personnel with access to it, and similar) (example: the valuable formula for the Coke beverage itself; note that a utility patent could also protect the Coke recipe, but a patent application requires in-depth disclosure of the patented product, visible to the public — including its competitors).
Another form of legal protection for distinctive expressive elements identified with a source is called Right of Publicity, which protects a person’s name, likeness, voice, or persona, rather than a tangible item or product – note that companies like Coca-cola do not have a right of publicity – only people do. Examples: celebrity images/distinctive appearance elements; Marilyn Monroe’s white dress, platinum blonde hair, whispery voice; Mel Blanc’s character voices; pictures of Colonel Sanders on KFC packaging). This protection varies from state to state (example, California’s law protects both living and dead people, whereas New York only affords this protection for living people.