Magazine article Information Today

Intellectual Property and the Shirt off Your Back

Magazine article Information Today

Intellectual Property and the Shirt off Your Back

Article excerpt

Intellectual property law is often seen as three separate areas: patent law, copyright law, and trademark law. Patent and copyright are almost exclusively federal law and find their origins in the U.S. Constitution, specifically Article I, Section 8, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Trademark and the related trade secret law have both federal and state overtones, arising out of laws governing business practices and fairness and the use of product markings to protect and identify brands, companies, and services.

There is, however, an elegant symmetry among these three legal regimes in how the creative products of the human mind are protected. It is not an accident that there are separate legal structures, as each one is designed to protect separate aspects of the intellectual process. This symmetry is demonstrated in a case recently decided by the U.S. Supreme Court and in a series of lawsuits filed against Target, Walmart, and Macy's. The Supreme Court case, Star Athletica, LLC v. Varsity Brands, Inc., dealt with cheerleader uniforms, and the lawsuits filed by Tipsy Elves (tipsyelves.com) against the retailers deal with "ugly sweaters." But what they both have in common is determining what protection is afforded to "useful articles" under patent, copyright, and/or trademark law and what the potential gaps in that protection are.

Useful Articles

A useful article is defined by the U.S. Copyright Office as "an object having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." It cites the examples of clothing, furniture, machinery, dinnerware, and lighting fixtures. The key to what constitutes a useful article is the combination of functionality, design, decoration, and possibly branding in a particular item.

That combination also brings the separate intellectual property legal areas into play. Patent law is about functionality and design. A "novel," "non-obvious," and "useful" function is entitled to patent protection. However, this protection lasts for only 20 years, and once it has expired, the functionality protected by the patent is available for others to use. My backpack, for example, likely has functional aspects of its arrangement of large and small pockets, straps, and attachments that may have at one time been individually or collectively patented, but are now free to be used by any backpack maker.

Design Patent Number 48,160

Patents also exist to protect designs. A famous example of this is the Coca-Cola bottle, design patent number 48,160, which was issued in 1915. As with functional patents, a design must be novel and non-obvious in order to be patented. The design must also be separable from the object's function, and the protection is limited to the design. Coca-Cola did not get any kind of patent protection for the concept of a glass bottle--even a glass bottle with scalloped or ridged raised portions (which might have been subject to a utility patent for serving to strengthen the bottle)--but it did get to protect the bottle's particular shape.

Coca-Cola was able to maintain that protection after the expiration of the design patents by obtaining a trademark for the shape. As the bottle's design had become so recognized as being associated with Coca-Cola, it had acquired "secondary meaning" within trademark law, which refers to the association by consumers of a particular mark, design, or logo with a certain product, company, or brand. …

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