Right to exclude or prevent someone from doing something Government registration – Enforce it in court Intellectual Property Tools: Copyrights: protect content and expression Trademarks: enhance marketing strategies Trade Secrets: keep proprietary info confidential Patents: obtain exclusivity in your market niche Utility: functionality Design: appearance
Copyright Owner has Exclusive Right to: Reproduce Exception: backup copies of computer programs Adapt Distribute to the Public Exception: First Sale Doctrine - Purchaser can resell purchased copy Public Performance or Display
With some exceptions, Copyright Owner has Exclusive Right to: Reproduce, Adapt, Distribute to Public, & Public Performance or Display
TM is any symbol capable of identifying and distinguishing its owner’s products from those of others…
Fanciful marks A fanciful / inherently distinctive trademark is prima facie registrable, and comprises an entirely invented or "fanciful" sign. For example, "Kodak" had no meaning before it was adopted and used as a trademark in relation to goods, whether photographic goods or otherwise. Invented marks are neologisms which will not previously have been found in any dictionary. Arbitrary marks An arbitrary trademark is usually a common word which is used in a meaningless context (e.g. "Apple" for computers). Such marks consist of words or images which have some dictionary meaning before being adopted as trademarks, but which are used in connection with products or services unrelated to that dictionary meaning. Arbitrary marks are also immediately eligible for registration. Salty would be an arbitrary mark if it used in connection with e.g. telephones such as in Salty Telephones, as the term "salt" has no particular connection with such products. Suggestive marks A suggestive trademark tends to indicate the nature, quality, or a characteristic of the products or services in relation to which it is used, but does not describe this characteristic, and requires imagination on the part of the consumer to identify the characteristic. Suggestive marks invoke the consumer’s perceptive imagination. An example of a suggestive mark is Blu-ray, a new technology of high-capacity data storage. Descriptive marks A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. An example might be Salty used in connection with saltine crackers or anchovies. Such terms are not registrable unless it can be shown that distinctive character has been established in the term through extensive use in the marketplace (see further below). Lektronic was famously refused protection by the USPTO on ground of being descriptive for electronic goods. Generic terms "Generic term" redirects here. For other uses, see Generic term (disambiguation). A generic term is the common name for the products or services in connection with which it is used, such as "salt" when used in connection with sodium chloride. A generic term is not capable of serving the essential trademark function of distinguishing the products or services of a business from the products or services of other businesses, and therefore cannot be afforded any legal protection. This is because there has to be some term which may generally be used by anyone—including other manufacturers—to refer to a product without using some organization's proprietary trademark. Marks which become generic after losing distinctive character are known as genericized trademarks.
Search existing marks before you invest in branding and marketing Evaluate potential for TM registration and infringement Preferably select strong marks that are arbitrary or fanciful Not weak marks that are descriptive or generic to product or service To get a trademark: For TM – Start marking sold goods with the MARKTM – common law For ® – Register with USPTO Properly display trademarks in marketing and police infringement
Identify – What trade secrets do you have? Classify – Have systems in place to organize secret information. Protect – Take reasonable measures to maintain the secrecy. Valuate – How much are your trade secrets worth?
Do you have good patents? Do you have issued patents? Do you have comprehensive specifications, with lots of alternatives? Are the claims too broad? Too narrow? Do they cover your product? Do they cover your competitors? Were they filed on time? File early! When will they expire? What countries do you have covered?
Patent Law Update for Medical Device Companies 2018
Patent Law Update for Medical
Device Companies 2018
Paul Conover, Irfan Lateef, &
MedTech Strategist Innovation Summit
November 28, 2018 / 11:45 AM