Intellectual property in a digital age

The Web has dramatically changed the way we practice intellectual property law. Thanks to tools like the Wayback Machine and Google’s cached pages, research that once would take weeks or longer can be accomplished in a few keystrokes. This revolution has occurred just in the last decade.

If a client says, “We want to sell this product using this name and this trademark,” we can quickly search the patent office and trademark registries to quickly determine if anyone is making or selling a similar product or using a similar name.

For example, before the Web, it would been easy for Kathy Amazon of Portland, Ore. to open up a storefront Amazon Bookstore, even though James Amazon, of Fort Lauderdale, Fla., had been successfully operating his three-store Amazon Bookstore chain for two years. Those two businesses might co-exist for years, individually building brand recognition, before anyone discovered the similarity.

It’s extremely unlikely that could happen today. With all the search engines we have available, Kathy likely would have been advised to come up with a different name.

Here are some basic things a business should know to protect itself in this brave new cyber world.

First, let’s get some basic definitions out of the way.

  • A trademark, or brand name, is a commercial source indicator. Trademarks can be words, slogans, logos, sounds or symbols. And while it’s recommended that you register a trademark, trademark rights accrue on use rather than application. The longer they are used, the more valuable they may become. Also, trademark rights do not expire as long as the mark is being used.

  • A patent is a grant by the government to the inventor of a device or a process. It gives the inventor the exclusive right to make, use or sell that product or process, usually for a 20-year period.

  • A copyright is a form of protection provided to the authors of original works of authorship, including literary, dramatic, musical and artistic works, both published and unpublished.
  • A digital watermark is one of the tools increasingly used in cyberspace to protect intellectual property. Like a watermark on stationery, a digital watermark is computer code embedded or hidden in a digital work. It may not prevent theft, but if the work is reproduced, the digital watermark will provide evidence of its origin.

It’s important to remember that much legal territory in this realm is still uncharted and courts are still grappling with many of these issues.

It was only at the end of last year that Google won a landmark victory in a trademark infringement case when a federal judge ruled that its keyword advertising practices were legal. The judge ruled that when Google users searched for a specific product, Google could display rivals as well. Higher courts have yet to rule.

And in June, the Supreme Court ruled that the creators of Internet file-sharing programs, such as Grokster, can be held liable for copyright infringement, siding with the interests of Hollywood over technology companies.

It’s certainly true that technology in general, and the Web in particular, has drastically rewritten the rules of commerce. But one of the lessons we’ve learned over the last several years is that commerce will adjust. Grokster, and Napster before it, posed real threats to the old business models of Hollywood and popular music. Once the courts stepped in and clarified the rules, nimble and savvy marketers, such as Apple’s iTunes store, stepped in and thrived.

The old model record store may not be around forever. But we’re not spinning plastic LPs on our turntables anymore either. Those businesses that understand and can take advantage of new technologies will continue to thrive. It’s been that way since the horse and buggy.

Richard Donnell is an attorney in the Washington office of Vorys, Sater, Seymour & Pease, specializing in intellectual property law. Reach him at (202) 467-8856 or [email protected].

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