Trending Video: Intellectual Property Rights

Intellectual property litigation partner Matt Rizzolo discusses several of the most prominent types of IP rights, what they protect, and how to tell them apart.

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Transcript:

I’m Matt Rizzolo, a partner in Ropes & Gray’s intellectual property litigation group. In this video, I’ll be discussing several of the most prominent types of IP rights, what they protect, and how to tell them apart.

A couple of years ago, I read a newspaper article addressing the plight of farmworkers in California during the COVID-19 pandemic. In that article, the author stated that the largest commercial grower of broccoli rabe in the country has “a patent on the name ‘broccoli rabe.’”  This piece—as well as other more recent articles covering high-profile intellectual property disputes involving Ed Sheeran, Andy Warhol, and the Washington Commanders—exemplified the ongoing and sometimes cringeworthy trend of confusion in many media outlets concerning intellectual property rights. There are many different types of intellectual property protection—patents, trademarks, copyrights, and trade secrets, among others—and each has their own important role in the innovation economy.

A patent, for example, protects a new and useful process, machine, article of manufacture, composition of matter, or ornamental design, and provides the patent owner with exclusive, time-limited rights in his or her invention in exchange for disclosing to the world how to practice or create the invention. This quid pro quo is designed to incentive innovation, allowing inventors to build on each others’ ideas.

On the other hard, some intellectual property, such as proprietary product ingredients or secretive manufacturing processes, might be most valuable to a company if it’s kept out of the public eye. In that case, this information can be maintained as a trade secret—something with economic value that isn’t already known or easily ascertainable by competitors or members of the public.

Needless to say, words or phrases such as “broccoli rabe” or The Washington Commanders can’t be patented or kept as trade secrets. But short words or phrases—as well as symbols, sounds, or even smells—can act as another type of intellectual property, called a trademark. Trademarks are used to identify the source of a particular good or service—think Apple for computers, the Nike swoosh for sporting goods, or even the familiar four note “Intel Inside” jingle for computer chips. But it’s also important to understand that trademarks provide protection limited to uses in connection with marketing or selling particular goods or services—it’s not an exclusive right to use the word for any and all purposes.

Other intellectual property rights protect authors of creative works. For example, photographs, music, literature, and even computer software code can be protected by copyright law, which gives authors the exclusive right to reproduce, distribute, display, or perform these copyrighted works. Copyright protects original works from the moment they are created, without the need for registering them with a government agency—and copyright protection is long, generally lasting for the creator’s lifetime plus a certain number of years.     

A helpful way to think about these different types of intellectual property rights and their role in the economy is by looking at a bottle of Coca-Cola-brand cola. The Coca-Cola Company holds a variety of patents protecting different features of and processes for manufacturing its soda bottles. The Coca-Cola name and contoured bottle design are arguably among the strongest source-identifying trademarks in the world. The many famous commercials and original songs associated with Coca-Cola’s decades of ad campaigns are all protected by the copyright laws. And of course, the formula for Coca-Cola’s flagship soft drink is the quintessential example of a closely guarded trade secret. All these distinct IP rights complement each other, contributing to Coca-Cola’s success.

So, there you have it—patents are not trademarks, trademarks are not trade secrets, and copyrights are a whole other thing entirely. The fact that different types of intellectual property get conflated so frequently these days is ironic, given that intellectual property is arguably more important right now than at any time in human history. I hope this video is helpful. And for all you journalists out there, if you’re not sure whether you’re referring to the right kind of intellectual property in your piece, don’t be shy—just pick up the phone and call your friendly neighborhood IP lawyer or law professor. We won’t charge you by the hour, I swear.