What exactly do intellectual property symbols like © and ™ mean and why are they important?
The symbol © indicates that copyright protection is claimed for a work of authorship, such as a book, photo, blog, software program, etc.
Works of authorship are protected under US copyright law as soon as they are “fixed in a tangible medium of expression.”
As Cornell Law School explains,
A work first must be in a tangible medium of expression which generally means the work can be communicated to others whether through visual or audio means. The main concern this part of the statute attempts to control is preventing ideas themselves from being copyrightable, instead requiring the idea to be expressed in a way that others can visually or audibly understand. On a practical level, it would be virtually impossible for the government to manage a copyright for an idea in someone’s head, and copyright exists to prevent others from copying the work of others, which they cannot do if the work remains uncommunicated. Once a work has been expressed such as through a book or film, the work has been expressed.
The second part of this requires that the medium of expression be fixed. This part emphasizes the need for the tangible medium to be in a form that is accessible by others, meaning the work must be put into a physical medium.
However, even though works are “protected” as soon as they’re created and “fixed,” in order to enforce that protection via a lawsuit for copyright infringement the copyright owner must first register the work with the US Copyright Office. This is a relatively simple and inexpensive process.
An author or copyright owner can use either © or the longer form “© [year] [owner Name]” – e.g., “© 2022 Jane Lopez” — whether or not the work is registered with the Copyright Office.
The benefit of using the © mark is to prevent an infringer from claiming that it was unaware that the work was under copyright. This can lead to enhanced damages for the copyright owner.
A less-known symbol is ℗, which stands for “phonogram” (not “patent”) and indicates that a sound recording is protected by copyright.
As the National Law Review explains,
Trademark rights fall into two categories – common law and federally registered trademark rights. Even though you may not have consciously made this distinction, it is likely you have seen different trademark designations in the marketplace: ™ or ℠ and ®. While these symbols all refer to the claim of trademark rights, when used correctly, the ™ or ℠ symbols refer only to common law trademark rights, and the ® identifies federally registered trademark rights recorded with the United States Patent and Trademark Office (“USPTO”).
™ is used in connection with goods, and ℠ is used in connection with services.
As the National Law Review notes,
Although common law trademark rights are easier to attain than federally registered rights, an owner’s trademark rights in an unregistered mark extend only to the geographic areas where the mark is actually used and other locales where the owner’s use of the mark would naturally extend. In contrast, a registered trademark often provides for national protection across the United States and is not limited to those geographic areas where the trademark is used.
Under 35 U.S. Code § 287,
Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or by fixing thereon the word “patent” or the abbreviation “pat.” together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.
As the National Law Review explains,
Proper patent marking serves as legal notice to an infringer, thereby allowing a patent owner to potentially sue an infringer and demonstrate earlier infringement, thereby obtaining higher monetary damages in a patent infringement lawsuit. Care and attention must be given to accurately marking products since improper patent marking potentially opens a manufacturer up to liability for false marking if there is deceptive intent.
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