Intellectual Property Law


Essentially, IP is intangible property developed through a thought-out process and acquires commercial value upon use in the marketplace. As a result of being commercially valuable, the law creates exclusive rights to the IP developer. There are four main areas of IP: trade secret, trademark, copyright, and patent. Trademarks differ from copyrights and patents. A trademark grants positive rights meaning that a trademark holder is granted the right to use the mark. Copyrights and patents grant negative rights, thereby prohibiting everyone except the copyright or patent holder from using the protected property. IP owners are free to transfer their rights to others, just like owners of tangible property.

Generally, trade secret law protects non-disclosed commercially valuable information. Trade secrets are the broadest area of IP and are commonly acquired in business because of the ease by which trade secret rights may be created and controlled. A trade secret is basically any information that can be used in running a business. It must be valuable and secretive enough to give or be likely to give the secret’s holder an economic advantage over others. However, not just any secret business information is necessarily a trade secret. A trade secret must be continuously used in business. Essentially, a trade secret must be secret information that is not generally known and provides an economic advantage to its owner, who developed the secret at his expense and intends to keep the secret a secret.

Trademark law’s general concern is protecting consumers from confusion as to the source of goods and services. A trademark is an entity’s identity in commerce. Use of a mark in commerce is essential to acquiring rights under trademark law.

A trademark is “a word, name, symbol, device, or other designation, or a combination of such designations, that is distinctive of a person's goods or services and that is used in a manner that identifies those goods or services and distinguishes them from the goods or services of others,” (marks that distinguish a service are service marks). A mark will fall into one of the following four categories in descending order: (1) fanciful, (2) suggestive, (3) descriptive, or (4) generic, depending on how distinctive or strong a mark is. 

A trade name is the same as a trademark but instead of identifying and distinguishing goods (or a service which is identified by a service mark), it identifies and distinguishes a “business or enterprise.”

Trademark law also includes an important “subset” known as trade dress. Trade dress involves the total image of a product and/or service and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques, which must be considered together, not separately.

Basically, copyright law promises authors and artists exclusive rights to their works for a duration in hopes of attracting investment to the production and distribution of art and literature. Copyrights (like patents) are monopolies that work to the benefit of both the author and society because, through copyrights, an incentive is created for the author to produce intellectual works to which the public may have access. A copyright is a set of six “exclusive rights” “in original works of authorship [that are] fixed in any tangible medium of expression.” Works of authorship include but are not limited to those that are “literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural.” 

“In no case does copyright protection for an original, work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Similar to trade secrets and trademarks, a copyright does not require registration for the owner’s property rights to vest. Initial copyright in a protected work vests in the author at the moment the work becomes fixed in the medium and endures for the life of the last surviving author plus seventy (70) years, terminating at “the end of the calendar year in which they would otherwise expire.”

The right of publicity is an IP right that gives an individual the exclusive right control the exploitation of his image or likeness. A celebrity such as an athlete or an artist, can derive greater income from the commercial use of their name and personality than they do from their performance because of their fame. Although legal issues concerning the right of publicity tend to involve a celebrity, the right of publicity is not exclusively reserved to the famous. In Massachusetts, people generally have the right to prevent others from profiting off of the commercial value of their image or likeness. However, commercial value in one’s image is usually derived from fame, even if at only the local level. Absent minimal fame, a person’s image likely has no commercial value.