North America's largest metal forming, fabricating, welding and finishing event heads to Orange County Convention Center in October 2024. FABTECH provides a convenient "one stop shop" venue where you can meet with world-class suppliers, see the latest industry products and developments, and find the tools to improve productivity, increase profits and discover new solutions to all of your metal forming, fabricating, welding and finishing needs.
North America's Largest Metal Forming, Fabricating, Welding and Finishing Event
The Importance of IP – A Thumbnail Sketch of Intellectual Property Rights
By David Adler, JD, CIPP/US at Adler Law Group on on
One question I’m frequently asked is “how can I protect my idea.” Giving an answer to that question requires understanding the different types of intellectual property rights such as copyright, trademark and patent. Many people recognize the words but don’t always know which one applies and what, exactly, it protects. The FABTECH seminar Protecting Original Design: The Importance of IP for Fabricators is intended to explain how, when, and why different intellectual property laws can be used to protect original design and how this creates opportunities to add value to a business.
Original design is important for two intertwined reasons. First, as more brands develop signature styles, protecting original design is more important than ever. Second, there is a real risk from knock-offs in terms of both product liability and fraud. Original design signals to the buyer a message of authenticity, craftsmanship, quality and durability. Lacking these attributes make knock-offs a form of fraud. According to Ricardo Nabholz, Assoc. IIDA, LEED AP, senior associate and creative director at TPG Architecture, “Once you divorce the idea of original design from products and apply it to other aspects of day-to-day commerce, it is easy to recognize knock-off as a form of fraud that no just person would willingly engage in.”
In order to protect original design it is helpful to have a working intellectual property vocabulary. Let’s start with the basics: Patent law provides a limited duration property right relating to an invention, to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matters, or any new useful improvement thereof. In addition, there are three types of patents – Utility, Design, and Plant. Federal registration is required to obtain and enforce patent rights.
Fabricators’ should take note of the requirements of a Design Patent: the subject matter is the design embodied in or applied to an article of manufacture (or portion thereof) and not the article itself. This includes ornamental designs of the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination, as well as configuration of goods. However, the protectable design elements cannot exist alone merely as a scheme of surface ornamentation, and not merely as chance result.
Similarly, Copyright law provides a limited duration property right relating to original works of creative authorship fixed in a tangible medium of expression. Copyright ownership gives the holder of the copyright in an original work of authorship six exclusive rights: 1) to reproduce and make copies; 2) to prepare derivative works; 3) to distribute copies; 4) to publicly perform; 5) to publicly display, and 6) to perform sound recordings publicly through digital audio transmission. Anyone or more of these six rights or some aspect of them can be transferred. Federal registration is not required to obtain copyright rights, but registration is required enforce copyright rights.
Lastly, Trademark law provides a unlimited duration property right relating to any word, name, symbol, or device, or any combination, used to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. Trademark rights arise from either actual use of the mark, or the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce. Unlike copyrights or patents, Federal registration is not required to establish rights in a mark, nor is it required to enforce rights. Trademark rights can last indefinitely if the owner continues to use the mark.
As described above, copyright, patent and trademark rights all provide different methods of protecting an idea. In the metal forming industry, innovative companies are embracing original design ideas that drive innovation and brand value. Understanding intellectual property basics is key to knowing how and when to protect original design.
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FABTECH 2024
About the Expo
North America's largest metal forming, fabricating, welding and finishing event heads to Orange County Convention Center in October 2024. FABTECH provides a convenient "one stop shop" venue where you can meet with world-class suppliers, see the latest industry products and developments, and find the tools to improve productivity, increase profits and discover new solutions to all of your metal forming, fabricating, welding and finishing needs.
