Trademarks Copyrights


Intellectual property can be a company’s most valuable asset and the acquisition, transfer, license or right to use such intellectual property is often an essential element in many business transactions.  Recently, lenders, investors and financial institutions have considered and requested intellectual property assets as collateral to secure company obligations and financing.

Intellectual property assets may be protected as patents, copyrights, trademarks or trade secrets.  In addition, intellectual property may be protected based on theories and principles of unfair competition.  The applicability and availability of such protection depends upon the specifics of the intellectual property and the type of protection desired.  Also one or more than one form of protection may be applicable and available to certain intellectual property.  For example, patent, copyright and trade secret protection is often applicable to software programs.



“What is a Trademark?”: Generally: Typically a trademark is a name or word capable of distinguishing goods or services of one source from those of other sources. Other examples of trademarks include: a symbol, logo, graphic design, phrase, series of letters, set of numbers, three dimensional object, fragrance, distinctive design of container, series of sounds, a telephone number, distinctive combination of colors. Function is not protected by trademark.

More on “What is a Trademark?” Federal and State law govern trademarks. The laws derive from the principle that a merchant has an inherent right to the exclusive use of those marks which distinguish its goods or services. No registration is required for trademarks used in commerce, however, registration provides the assumption that the owner of the registration has exclusive rights to use the mark in commerce for a particular purpose. Such a presumption is not easily overcome.

First come, first serve, is the policy with trademarks. Whoever registers or uses a mark in commerce first, has the exclusive rights to that mark for the purpose(s) or in the industry.

In addition, trademark rights may also be registered based on “intent to use,” if use in commerce will not occur until after the application is filed.


“What is a Trade Secret?”; Generally. Trade secrets are protected by civil and criminal statutes and common law (note, statutes are enacted by legislative bodies and common law is created by the courts). A trade secret may consist of any formula, pattern, device or compilation of information or other know-how that is used in a business, and gives that business an opportunity to obtain an advantage over competitors who do not know or use it. Some examples of trade secrets include: confidential business information such as new product lines or marketing initiatives and customer lists, formulae for chemical compounds, processes of manufacture, patterns for machines or other devices.


Federal law governs most copyrights, specifically the 1976 Copyright Act and its amendments. Copyrights are exclusive rights to original works of authorship [hereinafter the Work]. A Work is the expression of an idea, not the idea itself.

“What is a copyright?”: Copyright Owner’s Rights
Copyrights protect the owner from the unauthorized copying, distribution, performance and display of the Works and unauthorized creation of derivative works. Copyright in the United States also protects the “moral” rights of attribution and integrity, for the visual arts.  Thus, copyrights do not protect the owner from use by others of any idea, procedure, process, system, method of operation, concept, principle or discovery revealed by the Work.

“What is a copyright?”: Vesting of Rights
Copyrights to a Work automatically vest in the author or joint authors of the Work at the time  the Work is first expressed in a tangible form. Registration or filing is not necessary for vesting purposes, however it is necessary to pursue an infringement action.

“What is a copyright?”: Duration of Copyrights
The duration of copyright protection depends upon details regarding the author(s), the date upon which the work was created and the date of registration with the US Copyright Office. For works created after January 1, 1978 the following terms apply. These terms may not be renewed or extended.

A work of an individual author is protected for the life of the author plus fifty years.
Joint works prepared by two or more authors are protected for the life of the last surviving author plus fifty years.

Anonymous works, pseudonymous works and works made for hire are protected for 75 years from the date of publication or 100 years after creation, whichever is shorter.
Also, restoration of copyright protection is available for certain works of foreign origin that have fallen into the public domain in the United States, but are still subject to valid copyright in their source countries.

“What is a copyright?”; Formalities
Since 1989, federal law has not required the formalities of notice or registration to establish copyrights. However, it is still advisable to apply a copyright notice to each copy of a Work and to register copyrights in a Work.

The copyright notices may be made via use of the word “copyright” or the copyright symbol “©”; the year of first publication; and the copyright owner’s name. Notice can prevent inadvertent infringement, deter deliberate infringement and preclude the innocent infringer defense.


The 1990 Visual Artists Rights Amendment to the Copyright Act grants to the author of a work of visual art the rights of attribution and integrity for the life of the author.  This right applies to no other type of copyrightable Work.

Right of Attribution: allows an author to claim authorship of a Work and to prevent the use of his or her name to be attributed to Visual Art Work not created by that author.

Right of Integrity: This right allows an author to prevent the use of his or her name as author of the Visual Art Work in the event the Work is distorted, mutilated or modified, where such attribution would prejudice the author’s honor or reputation.

Although partially preempted by the Visual Artists Rights Amendment to the Copyright Act, the Massachusetts Art Preservation law, provides protection for rights of attribution and integrity in “fine art” during the author’s lifetime and for fifty years after the death of the author.

“What is a copyright?”:  International Copyright Conventions
The United States is a party to the Universal Copyright Convention (“UCC”), the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”) and the Agreement Establishing the World Trade Organization (“WTO”).