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Every day, more and more people are becoming aware of intellectual property. As a software developer, this is great!

When I started my career, I routinely ran into people who couldn't understand how someone could justify $100 for a piece of software when it only "cost" $5 to produce it because they didn't understand the concept of intellectual property.

Unfortunately, enough people know just enough to get themselves into trouble.  So in this article I will try to walk lay people through two of the three major types of intellectual property (the third being patents). 

Note, I am not a lawyer.  This article is not providing legal advice and if you have specific legal conclusions you want researched, you should speak to a qualified intellectual property lawyer. 

What is "IP"?

IP can refer to trademarks, copyrights, patents and other forms of intellectual property.  A trademark is IP.  A copyright is IP.  A  patent is IP.

Copyrights

Copyrights protect original works of authorship from being copied.  It's pretty straight forward.  Original. Works. Of Authorship.  Is that that thing a copy of that other thing?

Songs, poetry, movies, computer software and even architecture are protected by copyright.   Copyright does not protect names, facts, ideas, systems, recipes or methods of operation.

A copyright comes into existence the moment you create something that could potentially be protected. You don't have to file something to have a copyright.

You can't copyright an idea. You can copyright an expression.

Here's a simple example:

You can't copyright a cake recipe.  If I make a cake following a recipe and you make a cake following the same recipe these are two different cakes because they are both unique expressions of that recipe.  On the other hand, if we had a machine that could duplicate your cake then those cakes would be copies.

At the end of the day, a juror is ultimately asked "is this a copy of that?"  That means thing A and thing B are put next to each other and if thing B is substantially similar, then it's a copy.  Substantially similar doesn't mean just "similar".  It means that one is pretty obviously a copy of the other.

More reading:

https://www.copyright.gov/circs/circ33.pdf 

https://www.gamasutra.com/view/feature/187385/clone_wars_the_five_most_.php 

A good rule of thumb to follow on whether something is copyright infringement is to simply ask yourself: Is this a copy of this other thing?  Not similar. Not inspired by. Copied.

Famous Copyright Lawsuits

The question usually asked of jurors: Would a typical person recognize A and being B?

Sims Social vs. The Ville (EA vs. Zynga)

Rogers vs. Koons (Photography)

Star Wars vs. Battlestar Galactica (Too similar?)

My take

  • The Sims Social vs. The Ville are too close to call for me.
  • Rogers vs. Koons was pretty obvious copyright infringement to me
  • Fox would have lost the case handedly, BSG isn't a copy of Star Wars.

Trademarks

A trademark is a word and/or symbol to identify goods and services from one seller from another to prevent consumer confusion over the source of those goods and services.

Trademarks exist protect consumers and to contain the good will and reputation of the seller of goods and services.  "X: The name you trust!"

If the question is whether something is associated with something else or if people will "believe" something is actually something else, you are in the land of trademarks.

More reading:

https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf

Famous cases

Adidas vs. Forever 21 (the case of confusing shirts)

Starbucks vs. Freddoccino (the case of stealing good will)

Superhero (Marvel and DC have trademarked the word Superhero)

My take

It's pretty rare for a trademark case (within the US) to involve someone actually using someone else's trademark to associate their new product and service with it...so most cases involve third parties trying to pawn off on what they believe is the good will and reputation of their mark.

  • In both the Starbucks and Adidas cases, the argument seemed to be that people associate the stripes or the name+design of the drink with their mark and thus are benefiting from the good will and reputation of the former.
  • Superhero is way above my head. No idea.

 

Conclusions

On the Internet, everyone thinks they're a lawyer.  And sometimes, even general practice lawyers will opine on IP without really knowing much on it. 

I'm obviously not a lawyer but I have been through millions of dollars of IP litigation over the past 20 (mostly those patent trolls you hear about but multiple trademark and copyright suits as well).  

The very first IP lawsuit I was involved in was with Entrepreneur Magazine.  We had a video game called Entrepreneur and they argued that people would be likely confused into thinking our game was related to their magazine.  We settled and hence The Corporate Machine was born.  Would we have won if we had gone to court? Even today, I have no idea. You tell me.  It wasn't worth spending millions of dollars on though.

Anyone who tries to tell you they know the outcome is only showing they have no idea what they're talking about.  A better analogy would be to think of it as weighted dice.  When you're dealing with the courts, you are dealing with human beings and while different cases have better odds of success (No, you can't call your OS "Lindows") or failure ("No, Battlestar Galactica is not a copy of Star Wars") there's no sure thing.

Which is why a layperson's guide like this will get you 75% of the way because the last 25% of the way is largely dice rolling:

Copyright: Is X a copy of Y? Put them next to each other or describe in detail the two or list the source code of both, are they substantially similar? (i.e. a copy?)

Trademark: Would the average person familiar with the subject matter be likely confused into believing that X and Y are connected?


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