Definitions

Intellectual Property Glossary of Terms

A

Abandonment of Trademark: Occurs when the owner of a trademark or servicemark fails to use the mark in commerce for a certain period of time. Abandonment may also occur when the owner fails to bring a cause of action against an unauthorized user of the mark. If a trademark is considered abandoned, the owner typically loses exclusive rights to the mark.

Arbitrary Mark: Is considered one of the strongest types of marks because it does not typically carry a secondary meaning. They consist of words that are in common linguistic use but, when used to identify particular goods or services, do not suggest or describe a significant ingredient, quality or characteristic of the goods or services. An example of this would be the “Apple” Computer Company.

Author: In copyright law, the person or persons who originally created the work (literary, dramatic, artistic, musical or other pieces of intellectual property).

B

Berne Convention: Refers to the international agreement among numerous nations establishing rules, regulations and standards for literary, scientific and artistic copyrights.

C

©: Is the symbol used to identify that a particular piece is under copyright protection.

Certificate of Registration: The official document issued by the USPTO which shows that a particular trademark has been registered.

Collective Mark: A name, symbol or other device used by members of a group to identify a particular good or service.

Constructive Notice: Is a legal fiction which holds that people are presumed to have knowledge of a fact even though they may not have actual or direct knowledge of it. Registering a trademark gives nationwide constructive notice that the mark is in use.

Common Law: Is the body of law which that is derived from cases decided by the courts.

Common Law Rights: Are the rights derived from the use of an unregistered trademark in commerce. Common law rights are not found in the statutory law but rather from prior decisions of cases.

Copyright: Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Even though a particular work or piece does not have a copyright notice it is still protected under the Berne Convention.

D

Design Patent: The protection for the ornamental (decorative) appearance or look of an invention. Design patents do not protect the functionality of an invention.

Domain name: Identifies the name of an Internet site.

G

Generic Mark: Is a word or symbol used in connection with a good or service which is not protectable under trademark law. A generic mark is overly broad and typically cannot be distinguished from other goods or services.

Goods: Are products placed in commerce.

I

Infringement: The unauthorized use or imitation of a mark already used and appropriated by another person. Infringement can occur in copyrights, patents and in trademarks.

Intellectual Property: Property which can be legally protected, which includes copyrights, patents and trademarks.

L

Logo: Is a design, picture or symbol which identifies a company’s good or service.

Lanham Act: Is the Federal Law (Title 15, Chapter 22) which contains the statutes relevant to trademark law.

N

Notice of Publication: A written notice from the USPTO that a mark will be published in the Official Gazette.

O

Official Gazette: Is the weekly publication of the USPTO that includes marks that are published for opposition. This publication is available online.

P

Patent: A property right in an invention issued to the inventor from the USPTO. There are three types of patents issued by the USPTO: (1) utility patents, (2) plant patents and (3) design patents. Among the three different types, utility patents are the most common in the U.S.

Phonorecords: Material objects in which sounds, other than those accompanying a motion picture or audiovisual work, are fixed. Some common examples of a phonorecord are cassette tapes, compact discs and vinyl records.

Plant Patent: A property right given to an inventor who has invented or discovered and asexually reproduced a new variety of plant, mutant or spore.

Prima Facie: “At first sight”. A fact presumed to be true unless disproved by some evidence to the contrary.

R

®: Is the symbol used to identify that a particular item is registered with the USPTS.

S

Secondary Meaning: A trademark takes on a secondary meaning when it becomes an identifiable mark in the minds of consumers. Once a mark receives secondary meaning registration of it is possible.

Servicemark: A word, name, symbol or device that signifies the source of the services which distinguishes it from the services of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product or good.

T

TARR: Acronym for “Trademark Application and Registration Retrieval”. It is an online resource of the USPTO which allows a user to view pending and registered trademarks.

TEAS: Acronym for “Trademark Electronic Application System”. It refers to the electronic method of filing a trademark application online with the USPTO.

TESS: Acronym for “Trademark Electronic Search System”. It is the Federal database that can be used to search trademarks.

Trade Dress: Describes a product’s distinctive design, packaging, color or other appearance which makes it unique from other products or goods. Trade dress of a particular product or good is protected under trademark law.

Trademark: It is a word, symbol, name or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.

Trade Name: Is also referred to as a business name that is used in the course of business.

TM: Acronym for “Trademark”.

U

USC: Acronym for “United States Code”.

USPTO: Acronym for “United States Patent & Trademark Office”.

Use in Commerce: In order for a trademark to qualify for registration, the goods or services must be used in the stream of trade or business.

Utility Patent: Is the protection of an invention in terms of its function or the way it works. Utility patents generally fall under three types: (1) chemical, (2) mechanical and (3) electrical.