Avoiding Infringement Problems
How to avoid infringement of copyrights, trademarks and patents.
Utility patents cover how products are made, work, or are used. Their owners can stop the unauthorized practice of their inventions for up to twenty years from filing. Design patents last fourteen years from when they were issued, and protect the appearance of products.
Precisely copying a patent is not the only way that a business can infringe on a patent. Knowingly or unknowingly incorporating a patented invention or practicing or incorporating an invention sufficiently similar to a patented invention can also constitute infringement. A patent owner can enjoin your business from practicing the patent, and can sue for damages. In some situations, an injunction can be equally or more costly than potential damages, since it may mean legal fees, retooling costs, and inventory loss.
The only way to discover potentially blocking patents is to search the U.S. Patent and Trademark Office (PTO) database. Just because nothing like your business's product is on the market doesn't mean that it, or something too similar to it, isn't already patented. Although searching back twenty years is all that is needed to ensure that your business isn't infringing on a patent, it may be worth searching farther back. If an older patent exists covering all or part of the subject matter of your company's product, it is a good indicator that the component is safe to manufacture. If your company's product is truly novel, you may wish to consider applying for a patent.
Trademarks show the source of a product, indicating a brand. They can be words, slogans, logos, sounds, three-dimensional symbols, or even scents. They need not be registered for common-law rights to protect their holders, but federal statutory protections only apply to federally registered trademarks. Trademarks do not expire. An unregistered mark or a mark registered with a state are indicated by a "TM" or "SM" (service mark). Federally registered marks bear the registered trademark symbol, ®.
Nothing closely resembling another business's trademark should ever be used. An exact copy is unnecessary to infringe a trademark, only a mark that is similar enough to likely cause consumer confusion.
Trademarks can be harder to track down than patents. A quick trademark search should first be done on the Internet, using a search engine to find businesses using the name or slogan. Marks that survive this type of search should also be checked against state and federal registers. As with patents, federally registered trademarks can be researched on the PTO database.
One of the frustrating things about trademark searches is that infringement can be fairly remote. For example, a business may want to trademark "Thumper" as a name for a bass speaker. Assuming no other Thumper speakers are located, what other products named Thumper might the speakers be confused with? It is unlikely that the speakers would be confused with a baseball bat named Thumper, but that is not true with respect to a Thumper car stereo. What about a character name - would Disney protest because a character in the movie Bambi was named Thumper? How about if the only other user of the name is a strictly local business, Thumper Speaker Shack in Podunk, Montana? A thorough search will help your business understand all the possible risks, and will help its attorney advise it on whether it should look for another name.
Copyright infringement is almost never unintentional. Information, ideas, and technology (other than computer program source code) are generally not protected by copyright, only their precise embodiment. The old saw that if enough monkeys were put in a roomful of typewriters, one would eventually produce Hamlet is appropriate; the likelihood of infringing a copyright without conscious duplication is extremely remote.