That Was My Idea!

So, let's start at the top of the pyramid -> what is "Intellectual Property"?

Besides being a very subjective area of law, it is, in fact, just what it is claimed to be: the property of one's intellect or. . . the possessions of one's mind; better known to most as, "ideas". However, and arguably one of the most important legal principles associated with intellectual property is the fact that, an "idea", alone, is not "property" that can be protected until it has been manifested in a tangible form. Confused by the notion of "manifesting" your idea into a "tangible form"? Well then, write it down. No, seriously. When you put the property of your intellect in writing, you can begin to establish legal rights and protections to it.

Let's take trademarks for example. A person or business entity acquires rights in a trademark by either using it in the normal course of business or by filing an application for registration of the mark with the United States Patent & Trademark Office (USPTO). An application for registration may be based upon actual use or upon a bona fide intent to use the mark. An application filed with an intent to use, however, will not be accepted for registration until evidence of actual use of the mark in interstate commerce is provided to the USPTO. Moreover, and significantly, infringement can only be stopped with actual use and not with an intent to use or, at the federal level, by mere use without registration.

So what about trademark designations? What do they mean and are you entitled to use one?

In the United States, a registered trademark is designated by a circled "R". A user that doesn't actually register a trademark may instead use the common law designation "TM" in superscript next to the mark. Using the "TM" designation does not actually confer any legal rights in federal law, but it may nevertheless help the user acquire a secondary meaning to the mark in a certain geographical location.

Both registered and non-registered trademarks are eligible for protection under the Lanham Act; but the advantages of having a registered mark are several. For starters, and as mentioned above, one can file a lawsuit for infringement in federal court only if the trademark has been registered. Additionally, after five years of unopposed use, the mark becomes "incontestable". An incontestable trademark cannot be attacked on the grounds that it is merely descriptive (even if it is). And even without incontestability, a registered trademark has a presumption of being a valid trademark, placing the burden on the plaintiff to attack the defendant's mark. Furthermore, a registered trademark provides rights and protections on a national level and, in some cases, on an international level through a treaty known as the Madrid Protocol.

So . . . what will you do with the property of your intellect?