Blog Post Two
As I mentioned in my first blog point, there are differences and similarities between the various IP rights. For example, the duration of the various IP rights varies significantly.
Trademarks and trade secrets can last forever. Patents and copyrights, by contrast, have fixed lives.
As discussed here, there are generally three levels of trademark protection: federal, state and common law. Generally speaking, when a trademark is protected federally (i.e., at the USPTO), the trademark owner files an application and hopefully registers it. Upon registration, the trademark owner will continue using the trademark and if that trademark use continues long enough, the trademark owner can file maintenance documents discussed here along with the filing fee and proof of maintained use, between five and six years after registering the mark with the USPTO. Thereafter, the trademark owner will file similar but slightly different maintenance documents every ten years assuming that he or she continues to use the trademark and is willing to continuing paying the filing fees. As for state trademark registrations, the rules and requirements vary by state, but it is not uncommon for state registrations to require maintenance documents be filed every ten years. As for common law rights, the owner typically doesn’t file anything but the owner must continue using the trademark. The common theme across federal, state and common law trademarks is continuous use. If a trademark is used continuously (and maintenance fees, etc., are filed as necessary), the trademark owner can own that trademark indefinitely.
As discussed elsewhere, trade secrets require maintenance of the secret and proprietary information. A trade secret owner can continue to own the trade secret so long as the secrecy is maintained. However, if the secrecy is disclosed to the wrong person and/or makes it into the public domain or is independently discovered by third parties, any of which could potentially erode the secret nature of the trade secret, then the trade secret rights erode. However, if the secrecy of the trade secrets is maintained, the rights can continue indefinitely.
Patent rights have a fixed life. Design patents last 15 years from the date that the design patent is granted. Utility and plant patents, however, last twenty years from the filing date. Note, the filing date can be tricky depending on whether there are prior applications involved. Utility patents also require payment of maintenance fees during the life of the patent. By contrast, design patents do not.
Like patents, copyrights have a fixed duration. And depending on who the owner of the copyright is and depending on when the copyright was created, the lifespan for the copyright can vary. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional seventy years. To illustrate this point, imagine a brilliant musician composes a copyrightable work at the age of 10 and that musician goes on to live a long and happy life, reaching the age of 100. A copyright will last seventy years beyond the musician’s death. Ultimately, the copyright will have lasted one-hundred and sixty years. That is the ninety years of the musician’s life beyond creating the work plus the seventy additional years. Although the lifespan of that copyright is long, it is fixed in duration and cannot be extended.
