DEFINITION

• Intellectual property describes a wide variety of property created by musicians, authors, artists and inventors.

• The federal law of intellectual property encompasses the areas of copyright, patent and trademark laws.

• Intellectual property principles are designed to encourage the development of art, science and information by granting property rights to creative and inventive people. These rights allow artists and inventors to protect themselves from infringement, or the unauthorized use and misuse of their creations.

• The Constitution authorizes Congress to grant patents and copyrights, while the Commerce Clause authorizes Congress to regulate trademarks and acts of unfair competition.

• The states also retain concurrent power to regulate intellectual property unless preempted by federal law.

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RELATED PRACTICE AREAS

Patent Law
Trademark Law
Entertainment, Sports, & Leisure Law
Business & Commercial Law

BUZZWORDS

Commerce Clause - The Constitutional provision that gives Congress the exclusive power to regulate commerce among the states and foreign nations. (U.S. Constitution Art. 1, Sec. 8)

Copyright - A property right in an original work in any tangible medium of expression (musical, literary or artistic). The holder has an exclusive right to reproduce, adapt, distribute, perform and display the work (usually 50 years). Governed under the Copyright Act of 1976. (17 U.S.C.A. Sec. 101)

Infringement - Unauthorized violation of another's rights or privilege, especially of an Intellectual Property right such as patent, copyright or trademark.

Patent - The right to make, use or sell an invention for a specified period (usually 20 years) granted by the federal government if the device or process is novel, useful and non-obvious. (35 U.S.C.A. Sec. 101)

Service Mark - A name, phrase or other device used to identify and distinguish services of a certain business. Service marks are similar to trademarks, except they distinguish services rather than products.

Trademark - A word, phrase, logo or other graphic symbol used by a manufacturer or seller to distinguish its products. To receive federal protection, a trademark must be distinctive, affixed to a product in the marketplace and registered with the U.S. Patent and Trademark Office.

Trade Secret - A formula, process, device or other business information that is kept confidential in order to maintain an advantage over competitors.

Unfair Competition - Dishonest rivalry in trade and commerce. The body of law protecting the first user of a name, brand, size, shape or other distinctive characteristic against an imitating or counterfeiting competitor.

PRACTICE AREA NOTES

• Intellectual Property attorneys are usually compensated by a retainer and hourly rate. They also do transactional work, such as applying for patents or registering trademarks, which may be for a fixed rate.