Friday, January 12, 2007


My husband believes that it is easier to get forgiveness than permission, and I've learned to deal with him that way. But I keep telling him that this is not the way things work in copyright or trademark law.

Witness the flack that's flying because Apple announced the "iPhone" before finalizing any negotiations it may have been in with, I think, Cisco before Steve Jobs made the announcement earlier this week.

I am far from an expert in trademark law. My friend Karen is and we frequently disagree about which is the more difficult IP law to understand. She says trademark is a piece of cake, I say copyright couldn't be simpler but trademark is convoluted. My proof is that anyone can file a copyright registration and get it right but even professionals are guaranteed to get at least one "Office Action" for any trademark filing.

In any case, I had noticed that Apple was being very coy about calling their possible announcement an "iPhone" before the announcement, even though it would appear that the company does have a strong mark in the "i-Whatever" area. I was certainly not aware that any other company had such a mark, but the Internet does make searching the USPTO's files very easy. I heard my acquaintance Paul Supnick on the radio yesterday saying he thinks that what will happen is that Apple will buy or license the "iPhone" mark at a higher price than they originally expected to pay. Probably true and probably worth it for all parties to the deal.

So many news reports mix up copyright, patent, and trademark rights. Simply put, copyright is about authorship, patent is about invention, and trademark is about the source of goods or services. Sometimes things are protected by two of these concepts, and it is possible that some things might have protection under all three. Patent protects for the shortest period and trademark can theoretically protect for the longest since it's good as long as something is used in commerce and the periodic fees are made to the USPTO. Copyrights and patents are mentioned in the U.S. Constitution, trademarks are not.

You can't copyright a title, but you can get a trademark on a series of titles (Star Wars is a series) while the books or films are individually protected by copyright. Short phrases can't be registered for copyright, but a single photograph or drawing can be. I think an individual haiku can be registered for copyright, even if it has fewer than the 15 words that Ralph Oman, former Register of Copyrights, said was the rule of thumb minimum for registering writings.

If you need information or forms for registering a copyright, go to Even a copy of the law is there.

Isn't that easy?

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