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Intellectual Property Glossary

Intellectual property categories overlap less than they appear and protect different things. Picking the wrong category leaves real assets unprotected.

Trademark

A trademark protects identifiers — brand names, logos, slogans, product names — that distinguish one source from another. Rights arise from use in commerce ("common law" rights) and are strengthened by federal registration with the USPTO (in the US) or equivalent national bodies elsewhere. Federal registration creates nationwide presumption of validity, the right to use the ® symbol, and access to enhanced remedies in infringement actions.

Trademark protection is open-ended in time as long as the mark is used and properly maintained (renewal filings every 10 years in the US). Trademarks can be lost through abandonment (non-use), genericization (becoming the common name for the product class — "escalator," "thermos," "aspirin" all started as trademarks), or naked licensing (allowing third parties to use the mark without quality control). Strong trademark protection requires active enforcement against infringers.

Copyright protects original creative works fixed in tangible form: source code, written content, photographs, music, video, designs. Protection arises automatically upon creation; registration is not required for protection but is required to file an infringement lawsuit in the US and provides additional remedies (statutory damages, attorneys' fees) for infringement of registered works.

Copyright duration: in the US, life of the author plus 70 years for individual works, 95 years from publication or 120 years from creation for works made for hire. Software copyright protects the specific expression (the actual code) but not the underlying ideas, algorithms, or functionality — those are patent-eligible (or unprotectable). "Work for hire" doctrine assigns copyright to an employer for works created by employees within the scope of employment; for contractors, work-for-hire requires explicit written agreement.

Patent (utility)

Utility patents protect functional inventions: machines, processes, manufactured articles, compositions of matter. To be patentable, an invention must be novel (not previously disclosed), non-obvious (not an obvious extension of prior art to someone skilled in the field), and useful. Patent prosecution typically takes 2-4 years and costs $20,000-50,000+ for a single patent including attorney fees. Granted patents provide 20 years of exclusivity from the filing date, in exchange for public disclosure of the invention.

Patent strategy depends heavily on industry. Pharma and hardware industries depend on patents for ROI; software patents are weaker (Alice/Mayo doctrine has narrowed software patentability significantly post-2014). Many software companies file defensively — to deter competitor lawsuits via cross-licensing — rather than offensively. Trade secrets (see below) are often a better fit for software innovations than patents.

Patent (design)

Design patents protect the ornamental, non-functional appearance of an article — the shape of an iPhone, the visual design of a chair, the appearance of a UI element. They're distinct from utility patents (which protect function) and from copyright (which protects creative expression). Design patents are faster and cheaper to obtain than utility patents and last 15 years from grant in the US.

Design patents have become increasingly important in product industries because they're enforceable against close visual copies in ways utility patents aren't. The Apple-Samsung litigation that ran for years was substantially about design patents. For consumer products with distinctive visual identity, design patent filings are typically straightforward and worthwhile.

Trade secret

Trade secrets are information that is (a) not generally known, (b) valuable because it's not known, and (c) subject to reasonable measures to maintain secrecy. Examples: the Coca-Cola formula, customer lists, manufacturing processes, source code (when not licensed), pricing methodologies, ML model weights. Unlike patents, trade secrets don't expire — protection lasts as long as secrecy is maintained.

Federal trade secret law (DTSA, 2016) provides federal cause of action for misappropriation, supplementing state-level trade secret protection (typically based on UTSA). Reasonable secrecy measures include: written confidentiality agreements with employees and contractors, access controls, marking documents confidential, and maintaining separate physical and digital security. Failure to maintain reasonable measures can extinguish trade secret status. Trade secrets are increasingly the right protection for software algorithms post-Alice; patent protection requires public disclosure, which trade secret protection avoids.

Fair use

Fair use is a defense to copyright infringement in the US for limited unlicensed use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts assess four factors: (1) purpose and character of the use (transformative? commercial?), (2) nature of the copyrighted work, (3) amount used relative to the whole, (4) effect on the market for the original.

Fair use is fact-specific and unpredictable. Transformative uses (parody, commentary that adds new meaning) typically win; commercial uses that substitute for the original typically lose. Most other countries have narrower analogues ("fair dealing" in the UK, Canada, Australia) or no equivalent at all. The US fair use defense is foundational to many tech industry practices — search engine indexing, machine learning training data, news aggregation — though the boundaries are continuously litigated.

Public domain

The public domain consists of works for which IP protection has expired, was never granted, or has been actively dedicated to the public. US copyrighted works enter the public domain 70 years after the author's death (for individual works) or 95 years after publication (for older works for hire). Government works in the US are public domain from creation. Patents enter the public domain 20 years after filing.

Public domain status is jurisdiction-specific — a work in the US public domain may still be copyrighted in Europe due to different terms. Works can also be voluntarily placed in the public domain via dedications like CC0 (Creative Commons Zero). Trademark rights persist regardless of copyright status; "Sherlock Holmes" is in the public domain in many jurisdictions but specific brand uses are not.

Open source license

Open source licenses are copyright-based grants of rights — to use, modify, and distribute the software — subject to specified conditions. Licenses fall into two main camps: permissive (MIT, BSD, Apache 2.0) impose minimal conditions, typically just attribution and patent grants; copyleft (GPL, AGPL) require derivative works to be released under the same license, propagating the open-source obligation downstream.

License choice has commercial consequences. Building a closed-source product on permissively-licensed code is straightforward; building on copyleft (especially AGPL) imposes obligations to release derivative works. Most enterprise software is built on permissive licenses; using GPL/AGPL code in proprietary products without compliance is a real liability that surfaces in M&A diligence. License compliance scanning tools (BlackDuck, FOSSA) are now standard in software development pipelines.

Assignment of inventions

Assignment-of-inventions clauses in employment agreements assign to the employer all IP created by the employee within the scope of employment (or sometimes more broadly). This is essential for the employer to own work product cleanly: in the absence of such clauses, employees can retain ownership even of work created on company time using company resources.

The legal default varies by state. California's Labor Code Section 2870 limits the scope of assignment provisions — employees retain rights to work created entirely on personal time, with personal resources, and unrelated to the employer's business or anticipated R&D. Other states are more permissive. Employment agreements should pair assignment of inventions with prior-invention disclosure (listing inventions the employee owned before joining, which remain theirs).

Trademark dilution

Trademark dilution protection — available only to famous marks under US federal law (Federal Trademark Dilution Act, revised by TDRA 2006) — prevents uses that weaken the mark's distinctiveness even in absence of consumer confusion. Two flavors: dilution by blurring (impairing distinctiveness through associations with similar marks) and dilution by tarnishment (associations with unsavory uses).

Dilution claims are available only to truly famous marks — Coca-Cola, McDonald's, Nike. Courts apply a high bar; merely well-known regional or industry-specific brands typically don't qualify. The doctrine is one of the few areas of IP law that protects against non-confusing uses, and is heavily relied on in luxury goods and consumer brands enforcement.

Right of publicity

The right of publicity is a state-law right (most prominently in California, New York, and Tennessee) that allows individuals to control commercial use of their name, image, likeness, voice, and other indicia of identity. Use of someone's likeness in advertising without permission can trigger right-of-publicity claims even in the absence of trademark or copyright issues.

The right of publicity is increasingly relevant with deepfakes and AI-generated content depicting real people. Several states have enacted or are considering legislation specifically addressing AI-generated likenesses. Commercial use clearly triggers liability; news reporting and creative expression generally have First Amendment protections. The line between commercial and editorial use is not always sharp, particularly for native advertising and influencer content.