Vincent LoTempio explains that patents protect inventions, such as machines, compositions of matter like pharmaceuticals, or business methods used in apps like Uber or Zillow. A patent does not grant the right to make or sell an invention but instead provides the right to stop others from doing so.
Trademarks serve as brand identifiers, much like cattle brands from centuries past. They distinguish the source of goods or services and can include company names, product names, slogans, sounds, or even unique roars or yells like those of MGM or Tarzan.
Copyrights protect the creative work itself, such as music, art, photographs, books, and software. Ownership arises the moment a work is fixed in a tangible medium. For example, a photograph of a car belongs to the photographer, even though they do not own rights to the car itself. Similarly, software can be protected through copyright, as Apple initially did with its source code, which functions like a written language.
Is Registration Required for Copyright Protection?
Vincent clarifies that copyright exists the moment a creative work is fixed in a tangible medium, but registration provides significant benefits. Registration places the public on notice, serves as the ticket into court, and enables statutory damages. Without registration, a creator has common law rights but faces limitations in enforcement.
The same principle applies to trademarks: common law rights arise upon use, but registration gives nationwide notice and stronger enforcement. Patents, by contrast, require timely filing. If an invention is published, sold, or used publicly, a patent must be filed within one year, or the rights are lost. Unlike trademarks, patents are forfeited if another party files first.
How Do Trademarks Complement Copyright Protection?
Vincent discusses how trademarks and copyrights often intersect. He references the case of Warner Brothers v. RKO, where characters were protected under both copyright and trademark. For example, writing a new story featuring Batman could be considered a derivative work under copyright law, while selling Batman-branded products would involve trademark protection.
The way a mark is used determines whether it qualifies as a trademark. A source indicator, such as a label inside clothing, identifies the manufacturer. In contrast, ornamental uses—like a logo on the front of a hat—do not always function as trademarks. Famous cases, such as McDonald’s attempt to register its restaurant characters, demonstrate how improper use can result in trademark rejection.
How Should Businesses Build an Intellectual Property Portfolio?
According to Vincent, businesses must first identify what type of intellectual property they have—whether it is an invention, creative work, or brand asset. From there, they can decide whether to pursue patent, copyright, or trademark protection.
Startups and entrepreneurs often need to strategize due to limited resources. For example, a client may have a logo, product name, and slogan. Instead of registering all three at once, Vincent advises prioritizing which rights provide the most protection and registering accordingly. He emphasizes that decisions about intellectual property protection should be made before products are launched publicly, not after.
What Role Do Work-for-Hire Agreements Play in Copyright Ownership?
Vincent highlights that copyright in creative works belongs to all contributors unless a work-for-hire agreement is in place. For example, if editors or contractors assist in creating a podcast or film, they may hold rights to the work unless they assign them in writing. In the film industry, lengthy credits reflect the many contributors whose rights are assigned through contracts.
Similarly, if a new technical process is developed, it may even qualify for patent protection, but only if it is novel, useful, and non-obvious. Work-for-hire agreements ensure that intellectual property rights are consolidated with the party funding the project.
When Should Businesses File for a Trademark?
Vincent explains that trademarks require public use to be registered. However, an “intent-to-use” application allows businesses to reserve a mark before public launch. This process can be useful for brand planning, though it involves additional fees and follow-up filings. For most businesses, Vincent advises launching a product and filing immediately afterward to balance cost efficiency and legal protection.
What Legal Issues Does Artificial Intelligence Create in Intellectual Property?
Artificial intelligence introduces complex questions about ownership. Vincent notes that copyright registration requires human authorship. If AI generates content, applicants must disclaim portions created by AI and identify their original contributions.
For patents, inventorship is also limited to humans. An individual who merely observes a unique invention—such as a craftsman in another country—cannot claim inventorship, since they did not create it. AI-generated inventions raise similar challenges, as current rules require naming the human inventor.
In trademarks, AI could generate new brand names, ranging from generic or descriptive terms to fanciful, invented words like Google or Xerox. While AI tools can streamline naming, registration still depends on distinctiveness and use in commerce.
Vincent emphasizes that while AI can improve efficiency, questions remain about whether it is simply rewording existing information or creating new, original content. As the technology evolves, courts and agencies will need to clarify these boundaries.
When Should Entrepreneurs and Inventors Contact an Intellectual Property Attorney?
Vincent stresses the importance of contacting an attorney at the earliest stages. For patents, inventors must act before public disclosure to preserve rights and avoid infringing on others. Patent searches can confirm whether an invention is patentable and ensure freedom to operate.
For trademarks, Vincent advises conducting clearance searches before investing heavily in branding. He recalls a client who produced 75,000 cases of apple cider only to receive a cease-and-desist letter after launch. A simple search beforehand could have prevented significant financial loss.
For copyrights, filing should occur before public release to preserve the right to sue and obtain statutory damages. Across all forms of intellectual property, early legal guidance ensures rights are protected and costly mistakes are avoided.
